Essays on Halakhah in the New Testament (Jewish and Christian Perspectives Series)

Essays on Halakhah in the New Testament

Jewish and Christian Perspectives Series Editorial Board

David Golinkin, Marcel Poorthuis, Joshua Schwartz, Freek van der Steen Advisory Board

Yehoyada Amir, David Berger, Shaye Cohen, Judith Frishman, Martin Goodman, Clemens Leonhard, Tobias Nicklas, Eyal Regev, Gerard Rouwhorst, Seth Schwartz, Yossi Turner

VOLUME 16

Essays on Halakhah in the New Testament by

Bernard S. Jackson

LEIDEN • BOSTON 2008

This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication data A C.I.P. record for this book is available from the Library of Congress.

ISSN 1388-2074 ISBN 978 90 04 16273 0 Copyright 2008 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. printed in the netherlands

For Hannah, Matthew and Nathan

CONTENTS Abbreviations .............................................................................. Acknowledgements ..................................................................... Preface .........................................................................................

ix xi xiii

1. Historical Observations on the Relationship between Letter and Spirit ................................................................................

1

2. The Prophet and the Law in Early Judaism and the New Testament ..............................................................................

13

3. The Trials of Jesus and Jeremiah ..........................................

33

4. Testes Singulares in Early Jewish Law and the New Testament ...............................................................................

59

5. Susanna and the Singular History of Singular Witnesses ....

89

6. The Jewish Background to the Prodigal Son: An Unresolved Problem ...............................................................

111

7. Risk-Taking Shepherds ..........................................................

151

8. “Holier than Thou”? Marriage and Divorce in the Scrolls, the New Testament and Early Rabbinic Sources .................

167

Bibliography ................................................................................

227

Index of Sources ......................................................................... Index of Authors ........................................................................ Index of Terms ............................................................................. General Index .............................................................................

239 253 258 260

ABBREVIATIONS Abbreviations of biblical books follow RSV; those of mishnaic and talmudic tractates follow Danby. ANET ANET C CBQ CD Dig. DSD EM HL HTR IEJ JBL JJS JLA JLAS JNSL JPS JSNT JQR JSOT JSS JTS LE LH M NT NTS PAAJR PL RB RQ

Ancient Near East J. B. Pritchard (ed.), Ancient Near Eastern Texts Relating to the Old Testament (3rd ed., 1969) Codex (of Corpus Iuris Civilis) Catholic Biblical Quarterly Covenant of Damascus (Qumran) Digesta (of Corpus Iuris Civilis) Discoveries in the Judaean Desert Enzyklopedia Mikra’it Hittite Laws Harvard Theological Review Israel Exploration Journal Journal of Biblical Literature Journal of Jewish Studies Jewish Law Annual Jewish Law Association Studies Journal of Northwest Semitic Languages Jewish Publication Society Journal for the Study of the New Testament Jewish Quarterly Review Journal for the Study of the Old Testament Journal of Semitic Studies Journal of Theological Studies Laws of Eshnunna Laws of Hammurabi Mishnah Novum Testamentum New Testament Studies Proceedings of the American Academy for Jewish Research Patrologia Latina Revue Biblique Revue de Qumran

x

abbreviations

T Tosefta TWNT Theologisches Wörterbuch zum Neuen Testament, ed. G. Kittel and G. Friedrich VT Vetus Testamentum ZAR Zeitschrift für Altorientalische und Biblische Rechtsgeschichte ZAW Zeitschrift für die alttestamentliche Wissenschaft

ACKNOWLEDGEMENTS The editors and publishers of chapters 1–5 have kindly granted permission to reprint material which appeared originally as follows: Chapter 1. “Historical Observations on the Relationship between Letter and Spirit”, in Law and Religion, ed. R.D. O’Dair and A.D.E. Lewis (Oxford: Oxford University Press, 2001 = Current Legal Issues Vol. 4), 101–110. Chapter 2. “The Prophet and the Law in Early Judaism and the New Testament”, Cardozo Studies in Law and Literature 4/2 (Fall 1992), 123–138, 155–158. Chapter 3. “The Trials of Jesus and Jeremiah”, in “The Prophet and the Law in Early Judaism and the New Testament”, Cardozo Studies in Law and Literature 4/2 (Fall 1992), 138–155, 158–166. Chapter 4. “Testes Singulares in Early Jewish Law and the New Testament”, in Essays in Jewish and Comparative Legal History (Leiden, E.J. Brill, 1975), 172–201. Chapter 5. “Susanna and the Singular History of Singular Witnesses”, Acta Juridica (1977), 37–54 (Essays in Honour of Ben Beinart, Juta & Co., Cape Town).

PREFACE Chapters 1–5 in this book are reprinted from earlier publications where they were unlikely to command attention from New Testament specialists, and are here lightly revised. They cover some central aspects of the New Testament—theological concepts (letter and spirit, prophecy and law), the accounts of Jesus’ “trial(s)”, the evidence required for legal and theological claims, and teachings on forgiveness and divorce. Issues of genre (as in the parables) and method are highlighted. Though not a New Testament specialist, I have tried (especially in the more recent chapters) to grapple as best I can with the relevant New Testament scholarship. I fully appreciate that the material here studied is an insufcient basis for any overall conclusions regarding the role of the halakhah in understanding the New Testament—and vice versa. At best, it illustrates the complexity of the problem, and the dangers of attempting hasty generalisations. Both the New Testament and the halakhah are literary complexes, whose individual sources require separate consideration. Much of the work here presented dates from those periods in my career where the institutional context of my work favoured work in the history of Jewish-Christian relations: on the one hand, Edinburgh, where (though a member of the Law Faculty) I beneted immensely from the stimulation and friendship of colleagues at New College; latterly, at Manchester, where the Ehrhardt seminar and its various members have provided invaluable encouragement and feedback. Biblical quotations are from the RSV, with any amendments indicated. 30 April 2007

CHAPTER ONE

HISTORICAL OBSERVATIONS ON THE RELATIONSHIP BETWEEN LETTER AND SPIRIT 1. Introduction Modern lawyers and theologians within the Judaeo-Christian tradition have tended to view the “other” from within their own disciplinary framework. Lawyers used to be interested in broad questions of origins: were law and religion differentiated in early societies, and if so which came rst?;1 more recently, does religion, in the West, provide the original form of legitimation for law, and in particular the model of a canonical text and its interpretation?2 Theologians ask what is the role of law within religion. Insofar as the concerns of religion transcend mundane social life, does observance of divine law in this world (one possible denition of the “good life”) provide a ticket to the hereafter? Or, in more technical theological terms, is Justication by Works or Faith? In this paper, I try to disentangle these issues through a consideration of the famous opposition between “letter” and “spirit”. The dictum of Paul, famously rendered by the King James Version: “For the letter killeth, but the spirit giveth life”3 has itself been appropriated in their different ways by lawyers and theologians. The former have often seen it as a piece of hermeneutic advice: as advocating interpretation of a written text according to its “spirit” rather than its “letter”, thus favouring some form of “free” or “principled” interpretation over a “literal” reading.4 The latter more typically see in it Paul’s own endorsement

1 On Maine’s views, see Jackson 1992:288–292. A.S. Diamond strongly challenged prevailing assumptions. See my review of his Primitive Law, Past and Present: Jackson 1972. 2 See, e.g., Goodrich 1990:63–82. 3 2 Cor. 3:6: “The qualication we have comes from God; it is he who has qualied us to dispense his new covenant—a covenant expressed not in a written document but in a spiritual bond; for the written law condemns to death, but the spirit gives life” (RSV). 4 In fact, the understanding of the distinction as one between literal and allegorical meaning goes back to the early Church. Calvin, in his commentary ad loc., was scathing of the use made of it: “For the letter killeth. This passage was mistakingly perverted, rst

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of justication by faith (“spirit” = the Holy Spirit) rather than Works (“letter” = the Written Law).5 I shall argue, however, that the historical background indicates that the real dispute was one over the semiotics of revelation: through what means (text or inspiration) was the divine will made manifest and to what extent was that form of communication both effective and accessible to human reason? The history of the division between Judaism and Christianity may be viewed as a conict over the acceptable forms of communication of the divine message. One methodological caveat, before I begin. The “historical” account I shall propose is an account of the claims made in the texts which have come down to us. When discussing biblical law, in particular, we must distinguish between the historical and social realities of the period (insofar as we may have access to them), and the claims of the authors of the biblical texts, which frequently reect their own, normative views.6 My focus is on the latter, rather than the former. by Origen, and afterwards by others, to a spurious signication. From this arose a very pernicious error—that of imagining that the perusal of Scripture would be not merely useless, but even injurious, unless it were drawn out into allegories. This error was the source of many evils. For there was not merely a liberty allowed of adulterating the genuine meaning of Scripture, but the more of audacity any one had in this manner of acting, so much the more eminent an interpreter of Scripture was he accounted. Thus many of the ancients recklessly played with the sacred word of God, as if it had been a ball to be tossed to and fro. In consequence of this, too, heretics had it more in their power to trouble the Church; for as it had become general practice to make any passage whatever mean anything that one might choose, there was no frenzy so absurd or monstrous, as not to admit of being brought forward under some pretext of allegory. Even good men themselves were carried headlong, so as to contrive very many mistaken opinions, led astray through a fondness for allegory.The meaning of this passage, however, is as follows—that, if the word of God is simply uttered with the mouth, it is an occasion of death, and that it is lifegiving, only when it is received with the heart. The terms letter and spirit, therefore, do not refer to the exposition of the word, but to its inuence and fruit. Why it is that the doctrine merely strikes upon the ear, without reaching the heart, we shall see presently” (available on internet at http://www.ccel.org/c/calvin/comment2/2cor.htm). 5 Rom. 3:19–20, 10:1–4; See The Sermons of Martin Luther VIII.225f.: “Here man’s heart is represented as a sheet, or slate, or page, whereon is written the preached Word; for the heart is to receive and securely keep the Word. In this sense Paul says: We have, by our ministry, written a booklet or letter upon your heart, which witnesses that you believe in God the Father, Son and Holy Ghost and have the assurance that through Christ you are redeemed and saved. This testimony is what is written on your heart. The letters are not characters traced with ink or crayon, but the living thoughts, the re and force of the heart.” See further Jackson 1979:4–9. 6 This has implications, inter alia, for the assessment of prophetic denunciation of economic practices which may have been quite legal under state law. See Jackson 1998:227ff.

the relationship between letter and spirit

3

2. The Original Biblical Conception of Justice The biblical authors had a radical view of the nature of justice, and offer some very specic accounts of the history of its development. For them, justice was divine—not merely in some ideological sense: that justice is a value mandated by God, and therefore that the administration of justice was in the name of, or on behalf of, God (what we might term the theory of delegation).7 Rather, justice was divine in a very direct sense: it belonged to (was an attribute of ?) God,8 and decisions on matters of justice were rendered by God himself. Such a conception is not absent from the New Testament.9 How was this to be affected? Two answers are given. The rst is that the judge is inspired by God at the level of the individual decision. The accounts of both early (royal) adjudication and the earliest charges given to the judges appointed by those kings coincide in stressing direct divine inspiration rather than recourse to a divine text. According to Proverbs 16:10: “Inspired decisions are on the lips of a King; his mouth does not sin in judgement.” The famous adjudication by Solomon of the case of the two prostitutes (1 Kings 3:16–28) concludes with the narrator’s observation: “And all Israel heard of the judgment which the king had rendered; and they stood in awe of the king, because they perceived that the wisdom of God was in him, to render justice.” Perhaps the most famous charge to the judges in the Bible is that of Deuteronomy 16, where they are commanded to deliver “righteous judgment” (mishpat tsedek).10 This is further explained in both negative and positive terms: negatively, that the judges must avoid both partiality and corruption; positively, that they must pursue justice.11 The account of the “judicial

7

Though that is also claimed. The charge of Jehoshaphat to the judges includes: “Consider what you do, for you judge not for man but for the Lord” (2 Chron. 19:6). 8 Deut. 1:17, “for the judgment is God’s” (ki hamishpat lelohim hu). 9 See Derrett 1972:40f. on the conception of divine justice where the Rule of Law is inapplicable. 10 Deut. 16:18–20: “You shall appoint judges and ofcers in all your towns which the Lord your God gives you, according to your tribes; and they shall judge the people with righteous judgment. You shall not pervert justice; you shall not show partiality; and you shall not take a bribe, for a bribe blinds the eyes of the wise and subverts the cause of the righteous. Justice, and only justice, you shall follow, that you may live and inherit the land which the Lord your God gives you.” 11 Tsedek tsedek tirdof. But what is this tsedek? There is no suggestion that it consists in following the rules of a written law book; the noun tsedek, in its feminine form, tsedakah, means righteousness, and more concretely charity; it is difcult to grasp the sense of

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reform” of the ninth century King Jehoshaphat is closely parallel: his charge to the rst instance judges he appoints makes no reference to their using a written law book; rather, he tells them to avoid partiality and corruption (as in Deuteronomy) and that “(God) is with you in giving judgement” (ve{imakhem bidvar mishpat).12 In other words, judicial decisions were conceived to be inspired: we may understand this, from an external viewpoint, as a legitimation of the intuitive sense of justice. A second answer, perhaps reecting a viewpoint closer to the interests of the priesthood, is that the oracle should be consulted in every case (and not simply in “hard cases”, as later sources seem to imply). That view emerges clearly from the narrative of the visit of Jethro, the father-in-law of Moses, to the Israelites immediately before the revelation on Sinai (Exodus 18). Recall the vivid picture in Exodus 18:13–15 of Moses as the overloaded rst instance judge: On the morrow Moses sat to judge the people, and the people stood about Moses from morning till evening. When Moses’ father-in-law saw all that he was doing for the people, he said, “What is this that you are doing for the people? Why do you sit alone, and all the people stand about you from morning till evening?” And Moses said to his father-inlaw, “Because the people come to me to inquire of God . . .”

The problem, Moses explains, derives from the fact that the people expect him, in dealing with each and every case, “to inquire of God” (lidrosh elohim—a term which here refers to oracular consultation).13 Jethro, the story continues, advised Moses to create a system of judicial delegation, and to deal himself only with the “great matters” which the judges bring to him.

tsedek without being sensitive to this connotation. So it is possible to take the term most centrally translated “justice” as having a non-positivist biblical connotation. 12 2 Chronicles 19:5–7: “Consider what you do, for you judge not for man but for the Lord; he is with you in giving judgment. Now then, let the fear of the Lord be upon you; take heed what you do, for there is no perversion of justice with the Lord our God, or partiality, or taking bribes.” The fact that Jehoshaphat is elsewhere concerned with the use of a book of written torah, which he has used for public instruction (2 Chron. 17:9), makes its absence from the judicial reform all the more striking. On these sources, see further Jackson 2000:116–119; idem, 2007b. 13 Cf. 1 Kings 22:7f., 2 Chron. 16:6f.; 1 Chron. 10:13–14, of Saul’s consultation of a medium. See further Wagner 1978:302f.

the relationship between letter and spirit

5

3. From Spirit to Letter The advice given by Jethro in Exodus 18—presented as a reaction to a purely practical problem—entails rejection of the idea of the direct inspiration of the rst instance judge. Instead, a system of delegation is to be introduced, the rst instance judges now making the decisions on the basis of rules which have been taught. Elsewhere, written law is specically ascribed the function of a source of instruction.14 So Exodus 18 itself presents a two-stage historical claim: at rst, all adjudication was based upon the direct divine decision (through consultation of the oracle); later, “easy cases” at least were to be decided by human agencies applying pre-existing rules. A parallel historical development may be discerned in relation to the accounts of judges operating with direct divine inspiration. We read the following revealing notice regarding the sons of Samuel (1 Samuel 7:15–8:3): Samuel judged Israel all the days of his life. And he went on a circuit year by year to Bethel, Gilgal, and Mizpah; and he judged Israel in all these places. Then he would come back to Ramah, for his home was there, and there also he administered justice to Israel. And he built there an altar to the Lord. When Samuel became old, he made his sons judges over Israel. The name of his rst-born son was Joel, and the name of his second, Abijah; they were judges in Beer-sheba. Yet his sons did not walk in his ways, but turned aside after gain; they took bribes and perverted justice.

The model of the inspired judge is thus found, in practice, to be incompatible with the hereditary principle: the sons of Samuel transgress precisely the forms of judicial behaviour prohibited in Deut. 16. It is hardly coincidental that Samuel is the very prophet whom the people badgered, against his better judgement, for the appointment of a King. And it was Samuel who was responsible for what may well have been the rst text of written law in the actual history of the Israelite kingdoms, namely the mishpat hamelukhah which (presumably) dened and restricted the powers of the King (1 Samuel 10:25). Thus, in the story of Samuel two themes are combined: on the one hand, the writing of law in order to restrain the powers of a King; on the other, the abuse

14

2 Chron. 17:9 (see n. 12 supra); see also Deut. 17:18–20.

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of a hereditary judicial power. If written law was the remedy for the former, we may reasonably assume that it was also a remedy in relation to the latter. As in the traditions of the origins of law in Greece and Rome, written law is a response to the abuse of an earlier discretion, rather than discretion being the response to the supposed rigidities of an earlier written law. 4. The Bifurcation in Divine Justice The effect of this is a bifurcation in divine justice. On the one hand, divine justice continues to operate directly, without any human intermediaries; on the other, those human agencies charged with implementation of divine justice are no longer acting directly at the instance of God (whether via inspiration or oracle). Divine justice, as operated through human means, thereby becomes that much less perfect. It is now subject to the limitations of human knowledge and judgement. We see reections of this in the handling of two major institutions associated with divine justice. The principle of measure for measure—a particular application of which is talionic punishment—could, it was assumed, be applied by God,15 and was so applied, without arbitrariness and injustice. Not so, the Rabbis concluded, for human agencies. In the latter hands, it had to be reduced to monetary compensation, for which measures of quantication were available in human society.16 Similarly, the Decalogue threatens those who commit idolatry with transgenerational punishment:17

15 See, e.g., Jacob 1926:93–100; on the earlier literature, see further Jackson 1975:84 n. 58. For more recent discussion: Boogaart 1985:47f.; Nel 1994:22; Jackson 1996:108. 16 One of the arguments deployed by the Rabbis against a literal interpretation of the Biblical text is the following: “What then will you say where a blind man put out the eye of another man, or where a cripple cut off the hand of another or where a lame person broke the leg of another. How can I carry out in this case [the principle of retaliation of ] ‘eye for eye’, seeing that the Torah says, Ye shall have one manner of law, implying that the manner of law should be the same in all cases.” See Baba Kamma 84a (The Talmud, Soncino translation), discussed further in Jackson 2000a:11–16; idem, 2001:131f., 136f. For the rabbinic system of assessment of damages for bodily injury, see M. Baba Kamma 8:1 (translation in Danby 1933:342). 17 Exod. 20:5–6, cf. Deut. 5:9–10. The love/hate theme is widely seen as originating in ancient Near Eastern treaties, referring to relationships of rebellion or loyalty. See Weinfeld 1972:81–84; Levinson 1992:46.

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You shall not bow down yourself to them, nor serve them; for I the Lord your God am a jealous God, visiting the iniquity of the fathers upon the children to the third and fourth generation of them that hate me. And showing mercy to thousands of those who love me, and keep my commandments . . .18

The use of the rst person shows, in context, that this is a measure reserved for the operation of direct divine justice. As far as the human operation of divine law was concerned, the principle adopted by Deuteronomy 24:16 was to be that of individual responsibility: The fathers shall not be put to death for the children, nor shall the children be put to death for the fathers; every man shall be put to death for his own sin.

By the end of the First Jewish Commonwealth, however, the perceived consequences of the application by God of transgenerational punishment prompted a counsel of despair.19 Experience showed that human beings could not voluntarily rise to the standards required by such direct application of divine justice. Jeremiah expresses this20 in a famous passage (31:29–34): In those days they shall no longer say: “The fathers have eaten sour grapes, and the children’s teeth are set on edge.” But every one shall die for his own sin; each man who eats sour grapes, his teeth shall be set on edge. Behold, the days are coming, says the Lord, when I will make a new covenant with the house of Israel and the house of Judah, not like the covenant which I made with their fathers when I took them by the hand to bring them out of the land of Egypt, my covenant which they broke, though I was their husband, says the Lord. But this is the covenant which I will make with the house of Israel after those days, says the Lord: I will put my law within them, and I will write it upon their hearts; and I will be their God, and they shall be my people. And no longer shall each man teach his neighbor and each his brother, saying, “Know the Lord,” for they shall all know me, from the least of them to the greatest, says the Lord; for I will forgive their iniquity, and I will remember their sin no more.

18 Schenker 2000 has documented a strong ancient tradition seeking to avoid this conclusion by holding that the sentence against the original sinning generation is to be “suspended” until the third or fourth generation. 19 Cf. Greenberg 1995:18f., citing also Ezek. 36:24–27 (at 19f.). See further Jackson 2000:231–36. 20 On the importance of this issue as the context for Jeremiah’s “new covenant”, cf. Levinson 1992:51.

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The substance of the opposition here is between a covenant, compliance with which was voluntary—and breach of which was visited by direct divine punishment—and a covenant compliance with which was automatic21—we might almost say, genetically programmed (perhaps a reversion to the guiltless—or at least shameless—state of nature before Adam and Eve ate of the tree of knowledge).22 For the latter, Jeremiah still uses the metaphor of written law, but the covenant now is “written in the heart”, forming a spiritual bond between God and the believer. 5. Christian and Rabbinic Reactions It is not difcult to see how the early Church could turn this into a doctrine of justication. First of all, concern for the afterlife was by this period much more pronounced than it had been in the time of Jeremiah. For most of the writers of the Hebrew Bible, man returned to the dust from which he was created;23 divine punishment was focused on this world (including one’s posterity within this world). By the time of Jesus, belief in the afterlife, and the divine judgement which preceded it, was much more widespread. To this extent, the effects of divine judgement were even more signicant. The availability of a “new covenant” through which human beings could be protected from sin was interpreted by Paul as referring to a spiritual bond (faith in Jesus) which dispensed with observance of Torah, rather than one which made such observance automatic. Even though the “new covenant” was, according to Jeremiah, “written” in the heart, the opposition was expressed by Paul more directly as one between “Letter” and “Spirit”.24

21

Cf. von Rad 1965:212–15; McKane 1966:817–827 (noting Peake on the creation of an “inerrant moral sense”, at 820); McKeating 1999:154f. 22 Gen. 2:9, 17 (where God commands: “But of the tree of the knowledge of good and evil, you shall not eat of it; for in the day that you eat of it you shall surely die”, which contributes to the Pauline doctrine that “the letter killeth”, since the law involves guilt and lack of the capacity fully to comply with its demands). For Jewish approaches to the problem of the tree of knowledge, see Leibowitz 1972:17–27. For a review of modern scholarship, see Wallace 1985:115–30; Wenham 1987:62–64, arguing for understanding “knowledge of good and evil” as “moral autonomy” rather than “moral discernment”. 23 Notably Eccl. 12:7: “And the dust returns to the earth as it was; and the spirit returns to God who gave it”, cf., e.g., Ezek. 37; Ps. 22:16, 44:26, 103:14, 104:29, 119:25, Job 10:9, 17:16 (equated with Shexol ), 19:25, 21:26, 34:15, Eccl. 3:20. For discussion, see Wolff 1974:ch. 12; more briey, Neyrey 1985:282f.; aliter, Pitard 1993:15f. 24 In Rom. 2:14–16 Paul adapts Jeremiah’s image to his purpose: “When Gentiles

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Naturally, a different approach was taken within the Jewish tradition. A variety of views are expressed on the role of Torah in the messianic age, and indeed of the kind of new covenant to which Jeremiah referred.25 What was vital, however, from the Rabbinic point of view, was that the messianic age had not yet arrived, and thus the promise of Jeremiah, whatever it meant, was deferred. The Rabbis had to grapple in a different way with the tensions between the different forms of revelation—direct personal inspiration on the one hand, textual transmission on the other—endorsed within the biblical texts. Nor was it open to them to distinguish between different historical phases of the development of the normative pentateuchal texts. Their response was to develop a new conception of the relationship between letter and spirit. The letter did, indeed, require interpretation. Though the Rabbis did not endorse a concept of “literal meaning” comparable to ours,26 they did—naturally enough—read the texts through the techniques of literacy rather than orality.27 The techniques which they developed for this purpose did not oppose “letter” and “spirit” in the sense of modern legal hermeneutics. Rather, they attributed importance to those literary (as well as substantive) characteristics of the written text28 which a secular legal reading would ignore—precisely because the text, in their view, was not simply a secular legal text, but rather one dictated by God himself, and thus possessing semiotic characteristics beyond those of human draftsmanship. How, then, could mere human interpreters perceive such meanings? The answer was to re-attribute direct divine inspiration to the interpreters themselves. This is the signicance of the original Rabbinic

who have not the law do by nature what the law requires, they are a law to themselves, even though they do not have the law. They show that what the law requires is written on their hearts, while their conscience also bears witness and their conicting thoughts accuse or perhaps excuse them on that day when, according to my gospel, God judges the secrets of men by Christ Jesus” (RSV). 25 See esp. Davies 1952: ch. IV. 26 Their conception of peshat (“simple meaning”, as opposed often to derash) clearly included many interpretations we would regard as non-literal. Probably the earliest rabbinic reection on this is that of R. Ishmael (Mekhilta ad Exod. 21:19, Lauterbach III:53), who claimed that there were only three examples of interpretation according to mashal (metaphorical, or parabolic meaning): the interpretation of “an eye for an eye” as “money” was not one of them! On the notion of peshat, see Loewe 1965; articles on “Peshat”, and “Derash” by Rabinowitz in Enc. Jud. and older literature there cited; Kamin 1980; Halivni 1991; Jackson 2001. 27 See Jackson 2001a. 28 See Jackson 1993:151f.

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institution of “ordination” (semikhah), the continuation of the line of authority commencing with Moses, who “laid hands” on the head of his successor, Joshua,29 who in turn handed on the tradition of the “Oral Law” (through which the written was interpreted) to the elders, etc.30 A vivid illustration of the theological weight of such inspiration is to be found in a famous passage of the Babylonian Talmud (Erub. 13b), which records a three-year long dispute between the School of Hillel and that of Shammai on a point of law. In the end, a “heavenly voice”31 intervened to resolve the dispute, with the words: R. Abba stated in the name of Samuel: For three years there was a dispute between Beth Shammai and Beth Hillel, the former asserting, “The halachah is in agreement with our views” and the latter contending, “The halachah is in agreement with our views”. Then a bath kol issued announcing, “[ The utterances of ] both are the words of the living God, but the halachah is in agreement with the rulings of Beth Hillel”. Since, however, “both are the words of the living God” what was it that entitled Beth Hillel to have the halachah xed in agreement with their rulings?—Because they were kindly and modest, they studied their own rulings and those of Beth Shammai, and were even so [humble] as to mention the action of Beth Shammai before theirs. (Soncino translation)

This evocative passage has given rise to some discussion.32 Is it intended as a divine endorsement of minority as well as majority opinion (since one generation’s minority view may become the majority opinion of a later generation)? Does it suggest that divine law transcends the human logic of contradiction? However we may answer these questions, it is clear that the interpretation of the law is not a matter only of the meaning of its words, its letter. Even without the orality of the “heavenly voice”, the passage recognises the pragmatics as well as the semantics of interpretation—the behaviour (and not merely the cognition) involved in meaning construction.

29 Num. 27:22–23; Deut. 34:9. On the history of semikhah, see Newman 1950, 1972 and bibliography there cited. 30 M. Avot 1:1; Elon 1994:I.192f., 228f. 31 Despite the rejection of the bat kol as a source of halakhah for other (substantive?) purposes, in the famous “oven of Okhnai” passage: B.M. 59b; see further Jackson 2001:135. 32 See further Jackson 1987:33f.; Ben-Menahem 1987:167f.

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6. Conclusion Modern jurisprudence continues to manifest these same tensions, between “Rule of Law” positivists, who put their faith in a written text, and “Legal Realists”, who give primacy to oral interaction and the practical authority accorded to individuals and institutions. Particularly interesting, within this spectrum, are the models of judicial authority and activity proposed by Kelsen (the theory of normative alternatives)33 and Dworkin (1978:105), whose Hercules, we may recall, is described as a “lawyer of superhuman skill, learning, patience and acumen”, and who indulges in (what I have described34 as) a hermeneutic holism of truly Rabbinic proportions. But that is another story.

33 34

See further Jackson 1985:243–56; idem, 1996a:114–124. Jackson 2001a:322.

CHAPTER TWO

THE PROPHET AND THE LAW IN EARLY JUDAISM AND THE NEW TESTAMENT 1. Introduction Ancient debates between Judaism and Christianity have profoundly affected both Judaeo-Christian relations down to the present day, and the internal development of Judaism itself. Take, for example, the words of Paul, which have resounded down the centuries: The qualication we have comes from God; it is he who has qualied us to dispense his new covenant—a covenant expressed not in a written document but in a spiritual bond; for the written law condemns to death, but the spirit gives life. (2 Cor. 3:6, NEB)

Or, in the famous phrase of the King James version: For the letter killeth, but the spirit giveth life.

Similarly, Romans 2:29 (NEB): The true Jew is he who is such inwardly, and the true circumcision is of the heart, directed not by written precepts but by the Spirit; such a man received his commendation not from men but from God.

The “letter” comes to be associated with “The Law” and “the Spirit” with the Holy Spirit, and all too easily the phrase takes on connotations not merely of theological disputes ( justication by works or faith; revelation via a written text or to the individual heart or conscience):1 it even takes on connotations of “The Law killeth Jesus” and so gets mixed up with the deicide charge and the centuries of antisemitism which that charge was used to justify. Theological understanding is thus vital to communal relations. This paper addresses a related issue to that of letter and spirit, namely the tension between law and prophecy, as worked out in the various uses made of the tradition of the “prophet-like-Moses”.

1

See Jackson 1979, and ch. 1, supra.

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chapter two 2. The Role of the Prophet in relation to the Law in the Old Testament

2.1

Moses as prophetic medium of divine verbatim revelation of law

Recall the concluding words of the Pentateuch (Deut. 34:10–12): There has never yet risen in Israel a prophet like Moses whom the Lord knew face to face: remember all the signs and portents which the Lord sent him to show in Egypt to Pharaoh and all his servants and the whole land: remember the strong hand of Moses and the terrible deeds which he did in the sight of all Israel.

Of course, the main function of Moses in the history of Israel was to mediate the law: it was for that purpose that God knew him face to face. Nevertheless, the accolade accorded to him is that of supreme prophet. The “signs and portents” (haxotot vehamofsim)2 are merely evidence that Moses gave the law as a true prophet;3 they are the means by which the prophet establishes his status, not the essential function he is there to perform. A tantalising story in Jeremiah 36:1–23 illustrates some of the mechanics, in the period of the monarchy, of the continuation of this prophetic function. (1) In the fourth year of Jehoiakim son of Josiah, King of Judah, this word came to Jeremiah from the Lord: ‘Take a scroll and write on it every word that I have spoken to you about Jerusalem and Judah and all the nations, from the day that I rst spoke to you in the reign of Josiah to the present day. Perhaps the house of Judah will be warned of the calamity that I am planning to bring on them, and every man will abandon his evil course; then I will forgive their wrong doing and their sin.’ (4) So Jeremiah called the Baruch son of Neriah, and he wrote on a scroll at Jeremiah’s dictation all the words which the Lord had spoken to him. He gave Baruch this instruction: ‘I am prevented from going to the Lord’s House. You must go there in my place on a fast-day and read the words of the Lord in the hearing of the people from the scroll you have written at my dictation . . .’ (8) Baruch . . . did all that the prophet Jeremiah had told him to do . . . (10) Then Baruch read Jeremiah’s words in the House of the Lord out of the book in the hearing of all the people; he read them from the room of

2 Cf. Exod. 4:17, 10:1–2 for the use of ot by Moses in seeking to persuade Pharaoh to release the Israelites. 3 Cf. the tests stressed in Deuteronomy in distinguishing between true and false prophets (section 2.4 below).

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Gemariah . . . in the upper court at the entrance to the new gate of the Lord’s House. Micaiah son of Gemariah . . . heard all the words of the Lord out of the book and went down to the palace . . . There Micaiah repeated all the words he had heard . . . then the ofcers sent Jehudi . . . to Baruch with this message: ‘Come here and bring the scroll from which you read in the people’s hearing.’ (15) So Baruch . . . brought the scroll to them, and they said, ‘Sit down and read it to us.’ When they heard what he read they turned to each other trembling and said, ‘We must report this to the King.’ They asked Baruch to tell them how he had come to write all this. He said to them, ‘Jeremiah dictated every word of it to me, and I wrote it down in ink in the book.’ The ofcers said to Baruch, ‘You and Jeremiah must go into hiding so that no-one may know where you are.’ (20) When they had deposited the scroll in the room of Elishama the adjutant-general, they went to the court and reported everything to the King. The King sent Jehudi to fetch the scroll. When he had fetched it from the room of Elishama the adjutant-general, he read it to the king and to all the ofcers in attendance . . . When Jehudi had read three or four columns of the scroll, the King cut them off with a penknife and threw them into the re in the brazier. He went on doing so until the whole scroll had been thrown on the re.

We are not told a great deal about the content of this scroll, except that it was likely to be offensive to the king (many things could qualify), but it is by no means to be excluded that the scroll would have contained some normative material. Particularly interesting is the light here cast upon the way in which holy books could be inltrated into the temple archive, with the complicity of court ofcers—despite their sensitivity to the political dangers. Perhaps this casts light upon the famous incident a few years before, when, in the reign of King Josiah, a scroll (which many now identify with Deuteronomy) hitherto apparently unknown was discovered in the archive. 2.2

Prophet as authorised reformulator of the Law

A major role of the Old Testament prophet is to remind the people of some covenantal obligation which had been entered into at an earlier stage, and which the people appear to be violating. Take the following example, concerning Jeremiah in the reign of King Zedekiah ( Jer. 34:12–14):4

4

On the relationship also to Deut. 15:12, see now Jackson 2006:466–68.

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chapter two Then this word came from the Lord to Jeremiah: These are the words of the Lord the God of Israel: I made a covenant with your forefathers on the day that I brought them out of Egypt, out of the land of slavery. These were its terms: ‘Within seven years each of you shall set free any Hebrew who has sold himself to you as a slave and has served you for six years; you shall set him free.’

Jeremiah reminds the people of the law rst stated in Exodus (21:2)5 about the liberation of slaves, that a male slave taken for debt must be released in the seventh year. This is a law which, according to the narrative in Jer. 34, the people have neglected, and the prophet causes them to re-covenant. There may be a new act of covenanting. Nevertheless, the prophet clearly has the authority to use a different form of words to express the original law:6 Jer. 34:14: “Within seven years (mikets sheva shanim) each of you shall set free any Hebrew who has sold himself to you as a slave and has served you for six years”—expressed in the apodictic form. Exod. 21:2: “When you buy a Hebrew slave, he shall be your slave for six years, but in the seventh year he shall go free and pay nothing”—expressed in a variety of the casuistic form.

Such a capacity to reformulate is signicant, since there would come a time when the verbal formulation, as well as the substance, of the law would become inviolate from change. Clearly, the biblical prophet retained the capacity, in reminding the people of the law, to use his own words to express it.7 Indeed, there is a talmudic source which suggests that it is of the essence of prophetic revelation that its formulation is unique: “I have a tradition from my grandfather’s house that the same communication is revealed to many prophets, but no two prophesy in the identical phraseology.”8

5 In fact there are elements of both the Exod. and Deut. versions in Jer. 34:14. Mikets echoes Deut. 15:1 (not 15:12) but the restriction of the formulation to the male slave echoes Exod. 21:2 rather than Deut. 15:12 (in its present form). See further Jackson 2006:466f. 6 This might appear to make too strong an historical claim as to the availability of the Exodus formulation to Jeremiah. This is not the place to defend such a claim. Sufce it to say that the discrepancy must have been available either to the redactor of Jeremiah or at least to the nal redactors of the Pentateuch, and in either event was allowed to stand. 7 On repetition in the Hebrew Bible, see Alter 1981:ch. 5 (“The Techniques of Repetition” ). 8 Sanh. 89a, attributed to Jehoshaphat, in debate with Ahab.

the prophet and the law in early judaism and the nt 2.3

17

The Prophet as amender of the law: the “prophet-like-Moses” tradition

In the course his valedictory address, Moses enunciates God’s promise that in future there will arise prophets like Moses (kamoni ), whom God will inspire to communicate his commandments (Deut. 18:14–19): These nations whose place you are taking listen to soothsayers and augurs, but the Lord your God does not permit you to do this. The Lord your God will raise up a prophet from among you like myself, and you shall listen to him. All this follows from your request to the Lord your God on Horeb on the day of the assembly. There you said, ‘Let us not hear again the voice of the Lord our God, nor see this great re again, or we shall die.’ Then the Lord said to me, ‘What they have said is right. I will raise up from them a prophet like you, one of their own race, and I will put my words into his mouth. He shall convey all my commands to them, and if anyone does not listen to the words which he will speak in my name I will require satisfaction from him. But the prophet who presumes to utter in my name what I have not commanded him or who speaks in the name of other Gods—that prophet shall die.’ If you ask yourselves, ‘How shall we recognise a word that the Lord has not uttered?’, this is the answer: When the word spoken by the prophet in the name of the Lord is not fullled and has not come true, it is not a word spoken by the Lord. The prophet has spoken presumptuously; do not hold him in awe.

The passage contains a double admonition to obey such a prophet: elav tishmaxun in verse 15,9 and the threat to require satisfaction from anyone not obeying him (v. 19). The coming of such a prophet is not described in Deuteronomy as a one-off, once-and-for-all, event; the “prophet-like-Moses” is not an eschatological prophet. There is no suggestion in the text of a Messiah gure who will come to herald the end of days. Nor is this a second coming of Moses himself. It is a promise that, from time to time, prophets will arise who will have an authority comparable to Moses, as the bearers of divine commands. The rabbis were to identify at least three historical gures whom they consider to have possessed just this kind of authority, and in each case they allude to a command by that prophet contrary to the Mosaic law:10 the rst (even before Moses) is

9 A phrase to which later the rabbinic understanding of the institution was exegetically attached—see section 5.3 below. 10 B.T., Sanhedrin 89b; see further Jackson 1981:352 n. 51.

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Abraham, who commanded the sacrice of Isaac;11 the second, the prophet Micaiah, who ordered a colleague to smite him;12 the third (the locus classicus), the prophet Elijah, who ordered sacrice outside the Temple.13 This text was to prove of enormous signicance in the subsequent history of both Judaism and Christianity. 2.4

Opposition: the false prophet

There was a ne line in the Bible between the genuine and the false prophet, but, given the authority enjoyed by the genuine prophet, this was a line which it was vital to draw. We have seen in the case of Moses the stress laid upon his capacity to perform otot and mofsim (2.1, above), and the “prophet-like-Moses” passage itself explicitly raises the question of recognition, and offers non-fullment of a “word” (which could certainly include, and perhaps in the context does not go beyond, a promise to perform miracles) as a falsication.14 However, the absence of such a falsication does not entail recognition of the prophet’s status. According to Deut 13:1–5: When a prophet or dreamer appears among you and offers you a sign or a portent and calls on you to follow other Gods whom you have not known and worship them, even if the sign or the portent should come true, do not listen to the words of that prophet or that dreamer. God is testing you through him to discover whether you love the Lord your God with all your heart and soul . . . That prophet or that dreamer shall be put to death, for he has preached rebellion against the Lord your God . . .

Even success in performing otot and mofsim is no sufcient condition of true prophetic status; there is also a test as to the content of his teaching: not even a true prophet has the authority to command idolatry. The theme of the relationship of the prophet to Mosaic law is central to this passage, too. For the verse immediately preceding this passage is the famous (in rabbinic terms) bal tosif: “See that you observe everything

11

Abraham is called a navi in Gen. 20:7. 1 Kings 20:35–36. This, of the three examples, is the only one where the command of the prophet was disobeyed; the threatened divine punishment (here, attack by a lion) duly occurs. 13 See infra, 27f. 14 On the relationship between otot and fulllment of a davar, in the Hebrew Bible and later sources, see further Jackson, 1981:347–349. 12

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I command you: you must not add anything to it, nor take anything away from it.” Indeed, in the chapter division of the Hebrew Bible, this verse commences the chapter (13:1), followed immediately by the law of the false prophet. The underlying logic of the discourse is thus the following: 1. You, ordinary Israelites, have no authority to alter the law, but 2. A genuine prophet-like-Moses may do so, on proving his status 3. But even one who proves his status with otot and mofsim is really false if he commands idolatry. 3. The Prophet at Qumran The model of the prophet-like-Moses appears to have been important to the sect of Qumran. Various indications suggest that the sect’s major leader, the moreh hatsedek (the Teacher of Righteousness) was claiming a form of prophetic authority.15 He reformulated many of the rules, and restated them in a new collection (another mishneh torah). These rules of Qumran are written in a style of Hebrew relatively close to that of the Bible, particularly the priestly sections; as in Jeremiah’s reformulation of the law on slavery, no embarrassment is apparent at Qumran in reformulating Biblical rules—nor even in offering an entirely new text in which they are systematised. There is also a second—more radical—use made of the prophetlike-Moses tradition at Qumran.16 The “original rules” (hamishpatim harishonim) of the Community are said to be applicable “until the coming of the prophet and the Messiahs of Aaron and Israel”.17 Clearly, this trio of eschatological gures would have the authority to abrogate the “original rules”. The identity of “the prophet” with the prophet-likeMoses has been plausibly claimed because of the discovery at Qumran of a collection of testimonia (proof-texts), found in one of the smaller fragments (4QTest.), which includes the text of Deuteronomy 18 on the prophet-like-Moses.18 The functions of the prophet noted in sections 2.2–3 above are thus clearly manifest in the Qumran literature. And the prophet-like-Moses 15 16 17 18

See further Jackson 1981:349 n. 40. See further Stone 1992:167. 1QS 9:11; see further Jackson 1981:349 n. 42. Bruce 1960:49; Vermes 1977:185.

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tradition is taken to include an authority to change the law—though this power is here deferred until the eschatological, messianic future. These Old Testament and Qumran sources represent a long-standing and important Jewish institution, which we nd interpreted in different ways in the New Testament and Rabbinic Judaism. 4. The Role of Jesus in the New Testament 4.1

Jesus as a prophet-like-Moses

Vermes has argued that the earliest title claimed by (or on behalf of ) Jesus was that of “prophet”, but that the more specic identication of Jesus with the “prophet-like-Moses” arose only in the Gospel of John, well after Jesus’s death.19 This argument, however, assumes a radical understanding of the prophet-like-Moses model, that it necessarily entails a capacity to make permanent changes in the law, and is understood only in an eschatological, messianic context. ln fact, the nuances of the model are themselves found within the New Testament. There is evidence in the synoptic gospels that the original claim was non-radical and non-eschatological, indeed quite in conformity with what we shall nd to be the early rabbinic understanding of the prophet-like-Moses. In the Sermon on the Mount, Jesus says (Matt. 5:17–18): Do not suppose that I have come to abolish the law and the prophets; I did not come to abolish, but to complete.20 I tell you this: so long as heaven and earth endure, not a letter not a stroke will disappear from the law until all that must happen has happened . . .

Is the phrase “the law and the prophets” a hendiadys, referring to the Torah itself, or to Torah in general? Or does it mean the law, the Torah, and the nevixim, the prophets, as separate bodies of literature? Or might it indicate, as I suspect, a specic reference to Deut. 18? I suggest that it is the law of the prophet that Jesus claims here to full. That certainly gives the greatest force to “I have come”—the claim that an historical act fulls the promise of an historical act, that God would “raise up” such a prophet. Moreover, the activities of Jesus conform to what we know

19 20

Vermes 1973:87ff.; further, Jackson 1981. Other translations: “full” (Greek: ); see further Jackson 1979:3f.

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to be the role of such a prophet. I suggest that Jesus in the Sermon on the Mount claims precisely the authority of a prophet-like-Moses. 4.2

Jesus as reformulator of the tradition

One aspect of this is apparent from what follows immediately in the Sermon on the Mount: a prophetic reformulation of some of the Decalogue commands: You have learned that our forefathers were told, “Do not commit murder; anyone who commits murder must be brought to judgement.” But what I tell you is this: anyone who nurses anger against his brother must be brought to judgement. If he abuses his brother he must answer for it to the court . . .

Of course, there is a consciousness here of opposing understandings of the commandment; this goes beyond the example of Jeremiah, giving a linguistically distinct but substantively identical version to the original. But the version given here is offered not as a better, or privileged, interpretation: it is presented rather as the original meaning, not as interpretation at all. Despite the afnity, which Daube has noted (1956:55–62), with a rabbinic form of argument, “the tone is not academic but nal, prophetic, maybe somewhat deant. Nor is there any reasoning. The correct attitude is simply stated” (ibid., 58). Nor is there conceived to be any conict with the existing law; rather, Jesus claims to provide a more complete version of it (ibid., 60). By implication, a prophet-like-Moses can indeed add to the law,21 just as Moses did himself in the valedictory addresses which make up much of the normative material of Deuteronomy,22 and just as the Teacher of Righteousness did in formulating the serakhim at Qumran. But in making such use of the prophetic power, we may note, neither Moses nor the Teacher of Righteousness claimed to be an eschatological or messianic gure. We may contrast with the Sermon an incident where Jesus does appear as engaged in debating rival interpretations. In Matthew’s version (12:9–14):

21

Deut. 13:1, MT; see section 2.4 above. See further Jackson 2000:259f., 263f., on Deuteronomic normative material attributed to Moses. 22

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chapter two He went onto another place and entered their synagogue. A man was there with a withered arm, and they asked Jesus, ‘Is it permitted to heal on the Sabbath?’ (They wanted to frame a charge against him.) But he said to them, ‘Suppose you had one sheep which fell into a ditch on the Sabbath; is there one of you who would not catch hold of it and lift it out? And surely a man is worth far more than a sheep! It is therefore permitted to do good on the Sabbath.’ Turning to the man he said, ‘Stretch out you arm.’ He stretched it out, and it was made sound again like the other. But the Pharisees, on leaving the synagogue, laid a plot to do away with him.

Here Jesus engages in elaborate argument—including a kal va˜omer—in justication of his position. He does not claim his view to be self-evident, the result of either prophetic reformulation or change. And indeed, we know that comparable matters had for some time been debated. At Qumran, there were rules which prohibited, on the Sabbath, both the lifting of an animal out of a ditch, and even the saving of a man drowning in a pit or waterhole, through the use of a rope or other instruments.23 The kal va˜omer of Jesus would therefore not have been self-evident. The legal interpretation of the situation was, at the very least, controversial. 4.3

Jesus as deviator from the Law?

Elsewhere, Jesus’ teaching and authority seem of a rather different nature. This is the Matthaean version of an incident reproduced (with variations) in all three of the synoptic Gospels (Matt. 12:1–4, cf. Mark 2:23–26, Luke 6:1–4): Once about that time Jesus went through the cornelds on the Sabbath; and his disciples, feeling hungry, began to pluck some ears of corn and eat them. The Pharisees noticed this, and said to him, ‘Look, your disciples are doing something which is forbidden on the Sabbath.’ He answered, ‘Have you not read what David did when he and his men were hungry? He went into the House of God and ate the sacred bread, though neither he nor his men had a right to eat it, but only the priests.’

The clear implication of the Pharisees’ question is that, according to Pharisaic law at the time, such sabbath gleaning was not permitted.

23 1QS 11:13ff., 16ff.; see Schiffman 1975:121–128. Rabbinic law would regard desecration of the sabbath in the latter case as justied, in order to save life ( pikua˜ nefesh). The incident concerning Jesus, however, is not one involving any immediate threat to life.

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Jesus replies by citing a precedent: that of David (before he became king), who ate and allowed his soldiers to eat the bread of the temple, even though, according to the law, it was reserved for the priests. The force of the precedent, according to Jesus’ argument, derives from the analogous justications in the two cases: David allowed it because his soldiers were hungry; the disciples are doing it for the same reason.24 Jesus is not here claiming to set a precedent, that it will always be permissible to pluck ears of corn on Shabbat. Nor is he even offering a rival interpretation of the law (as in the dispute over sabbath healing): that it is permitted to pluck ears of corn on Sabbath, contrary to the Pharisaic interpretation. Rather, Jesus here claims an authority comparable to that of David, to suspend the law on a particular occasion. A second example of this suspensory power might be considered a little trivial. As the story of the New Testament reaches it climax, Jesus travels to Jerusalem for the Passover (Matt. 21:1–5): They were now nearing Jerusalem; and when they reached Bethphage at the Mount of Olives, Jesus sent two disciples with these instructions: ‘Go to the village opposite, where you will at once nd a donkey tethered with her foal beside her; untie them, and bring them to me. If anyone speaks to you, say, “Our master needs them”; and he will let you take them at once.’ This was to full the prophecy which says,25 ‘Tell the daughter of Zion, “Here is your King, who comes to you in gentleness, riding on an ass, riding on the foal of a beast of burden.” ’

How can the disciples just go and take someone’s ass? It is private property. And the three synoptic Gospels show differing degrees of embarrassment or concern about this apparent breach of the law. Jesus is asking his disciples to steal, in order to enable him to enter Jerusalem in this way, and thereby to full the prophecy. Here in Matthew, Jesus anticipates that the owner will consent, once the particular need is pointed out. In Mark, this argument is elaborated: the disciples are

24 The hunger of David’s men occurs in all three versions, even though it is only in Matthew that the parallel with the hunger of the disciples is stressed. If the justication rested solely in the general authority of Jesus, as might appear from the claim that “the Son of Man is sovereign over the Sabbath” (Matt. 12:8, Mark 2:28, Luke 6:5), there would be no need for the stress on this special circumstance. In fact, there are clear indications in all three synoptics that the sovereignty claim was not part of the original story. In Matthew and Mark it forms the conclusion to further (and different) arguments; in both Mark and Luke it is introduced by: “he also said” (     ). 25 Zech. 9:9.

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to promise to return the animal without delay. Mark (uniquely) then goes on to record an actual challenge by “some bystanders”, who, on receiving this assurance, allow the disciples to proceed.26 But in Luke, which on this occasion has claims to be the oldest of the traditions, Jesus simply says: If anyone asks you, just say ‘the Lord has need of it’. In rabbinic terms, this amounts to tsorekh hashaxah, the needs of the hour. Again here, there is no claim either to create a precedent or to adopt a new interpretation of the law; rather, we have a claim of authority to suspend the law on one particular occasion, a purely ad hoc measure.27 Such an authority to authorise a deviation28 is the principal theme of the rabbinic exegesis of the prophet-like-Moses passage (5.3, below). Not all the claims of Jesus to deviate from the law follow this moderate conception of the authority of the prophet-like-Moses. There are other sources where more radical claims are made, not merely to authorise suspension of the law on an ad hoc basis, but to amend it in perpetuity, and even to replace the old covenant with a new one—one in which, for example, circumcision would no longer be required of converts.29 We have seen how such a claim, still made in the name of the prophet-like-Moses, was associated at Qumran with messianic and eschatological expectations (section 3, above). Recall also the temporal limitation of Jesus’ afrmation of the Law in the Sermon on the Mount: “so long as heaven and earth endure”, i.e. until the eschaton.

26 Mark 11:1–7, clearly an articial elaboration: there is no indication that the “bystanders” (      , v. 5) were the owners of the animal. 27 A further example: the use by Jesus of the oil given him by the woman at Bethany (Matt. 26:6–13, Mark 14:3–9, Luke 7:36–50, John 12:1–8); in Luke, the incident arises in the context of a challenge to Jesus’s prophetic status; see further Jackson 1981:354. 28 Not to justify it ex post facto; though we encounter that, exceptionally (on one reading of the incident), in the story of the woman taken in adultery, which occurs only in a pericope attached to the Gospel of John (7:53ff.). The prophet, generally speaking, does not function as a judge in the Bible. We do have occasions when prophets intervene in individual cases of dispute, most notably cases where they remind the king of the moral authority of the law that the king runs the risk of overriding, like that of the prophet Nathan in relation to David. However, for John, the authority of Jesus is conceived primarily as that of a king-messiah, including judicial authority—5:22,       !"#. The incorporation in John of the woman taken in adultery pericope, and its exclusion from the synoptics, is therefore coherent with the approaches of both. On Jesus’ role here, see further Derrett 1970:159f. 29 It was thus very much in the interests of the early Church, reected particularly in the Pauline sources, to stress this form of authority. See particularly Vermes 1977:185, for this theme.

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John understands the prophet-like-Moses model in a similar way,30 and Peter, as recorded in Acts 3:22–23, explicitly uses Deut. 18 as a proof text in preaching the second coming of Jesus.31 Small wonder that this proved disturbing to the Rabbis. 5. The Early Rabbinic Sources 5.1

The Rabbinic appropriation of the prophetic model

The Rabbis located prophetic authority within a history of tradition which commenced with Moses and ended with themselves. As the famous Mishnah Avot 1:1 puts it: Moses received the law from Sinai and committed it to Joshua and Joshua to the elders, and the elders to the prophets, and the prophets committed it to the men of the great synagogue . . .

There was thus no antithesis or conict between law and prophecy; between the rabbi on the one hand and the prophet on the other. Prophecy itself was claimed to have ceased,32 but prophetic authority, itself inherited from Moses, was conceived to have been handed on to the Rabbis. And while the prophetic medium of revelation was, for the most part, replaced by another—the interpretative, argumentative mode of the Rabbis, as developed in the Oral Law—we can still trace within the rabbinic literature a continuation of those functions in relation to the law which originated in the prophet-like-Moses tradition. We must consider the ways in which the rabbis appropriated these particular aspects of prophetic authority. 5.2

Mishnah as restatement of law

The Mishnah is itself to be understood in this context. Its very title harks back to Deuteronomy, which, as suggested above, can itself be regarded as a rst example of the genre. According to the theory of the Oral Law, the Mishnah was not a later invention; it was given to Moses and handed down the chain of tradition. Just as Deuteronomy

30

1:21, 6:14–15, 7:37–40; Jackson 1981:348, 356. See further infra, 56. 32 See Urbach 1947 on the dating and signicance of these traditions; se further Jackson 1981:357 n. 7. 31

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was conceived to complete the written Torah, so the Mishnah was taken (for the moment) to complete33 the Oral law. In both cases, “repetition” takes the form of a new formulation of rules—even introducing some entirely new material—but nevertheless the thematic links, and perhaps even more the repetition of the act of enunciation, in the rst case by the prophet Moses himself, in the second by those who so prominently claimed to have inherited his mantle, justied the conclusion that the second document was essentially the completion of the rst. The compiler of the Mishnah was not, as we have seen, the rst to make such a claim in the postbiblical period. Exactly the same had been done by the Teacher of Righteousness in the serekh of the Qumran community. 5.3

The Rabbinic power of suspension of the law

The rabbinic exegesis of the prophet-like-Moses texts explores the relationship of the various elements of the Biblical tradition (the test of status by “signs”, the authority over the law, and the relation to false prophecy) in a manner such as to preserve the force of the institution without opening the door to radical, eschatological—and specically christological—interpretations. Consider rst Sanh. 90a: R. Abbahu said in R. Jo˜anan’s name: in every matter (bakol ), if a prophet tells you to transgress (im yomar lekha avor) the commands of the Torah, obey him, with the exception of idolatry: should he even cause the sun to stand still in the middle of the heavens for you (as proof of divine inspiration), do not Hearken to him.

Here a typical ot is mentioned as the means by which the prophet seeks to prove his authority over the law. But the case falls squarely within Deut. 13: since he is telling you to commit idolatry (the case envisaged in Deut. 13), he is proved thereby to be a navi sheker, despite the performance of the miracle. This apart, there is a general authority of a prophet to command you to transgress, la{avor divre Torah. That sounds very radical. But a baraita earlier on the same page suggests an important distinction: Our Rabbis taught: if one prophesies so as to eradicate (la{akor) a law of the Torah, he is liable (to death); partially to conrm and partially to

33 Even “full”, in the sense Daube 1956:60 attributes to  in the Sermon on the Mount.

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annul it,—R. Shimon exempts him.34 But as for idolatry, even if he said, ‘Serve it today and destroy it tomorrow,’ all declare him liable.

There is thus a distinction between a command to transgress a law (avor) in R. Jo˜anan’s dictum, and an instruction to “eradicate” (la{akor) a law. The former—ad hoc suspension—is (with the exception of idolatry) within the authority of the prophet-like-Moses; the latter—a permanent annulment (a breach of bal tigra) renders the prophet guilty of false prophecy.35 There is a second terminological distinction between these two passages, which further supports this distinction. In the rst passage, the dictum of R. Jo˜anan, it is signicant that the language here is im yomar lekha—supposing that the prophet speaks to his audience directly, in the second person singular. Thus the text contemplates direct communication on a particular occasion. He is not making a general pronouncement; he is merely suspending the law on this particular occasion and for those whom he addresses. The second text lacks this direct speech audience. It contemplates a prophecy permanently to uproot a law of the Torah, directed to the people generally. Without more, this argument might appear to hang on two relatively arbitrary linguistic choices. But support comes from a third passage, in Yevamot. This is an exegesis of the biblical phrase, elav tishmexun, which is used to express the obligation of the Israelites to obey the prophetlike-Moses (Yeb. 90b, Sifre ad Deut. 18:15): Come and hear: unto him ye shall Hearken, even if he tells you36 “Transgress (avor) any of all the commandments of the Torah” as in the case, for instance, of Elijah on Mount Carmel,37 obey him in every respect in accordance with the needs of the hour.

The example shows clearly that the prophet-like-Moses tradition is understood as conferring an authority to suspend the law in particular

34 There is an implication here that the opinion of R. Shimon is a minority view, and that the majority regard this, too, as a case of false prophecy. It is tempting, though speculative, to see here an allusion to the Christian position. 35 See Maimonides, Hilkhot Yesode Hatorah 9:1, who expresses the rule (and extends it to heretical interpretation) in the terminology of the biblical texts: im ya{amod ish . . . veya{aseh ot o mofet veyomar shehashem shelaho lehosif o ligroa mitsvah o lefaresh bemitsvah min hamitsvot perush shelo shamanu mimosheh, hare zeh navi sheker. 36 Alu omer lekha—the same type of formulation, implying direct speech from the prophet to those he commands, as in the dictum of R. Jo˜anan. 37 Where he offered a sacrice on an improvised altar—1 Kings 18:31ff.—despite the prohibition against offering sacrices outside the temple.

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cases. Elijah authorised his followers to sacrice on Mount Carmel at a time when, at least according to later tradition, the cult had already been centralised. According to tradition, he departed from the law. Why? In passages which go into greater detail, the argument is put: if the followers hadn’t been allowed to sacrice to our God there, on Mount Carmel, they would have adopted idolatry, and sacriced to alien pagan gods there. The passage then continues: hakol le sha{ah, everything depends upon the circumstances of the time. But if the time is right and the prophet authorises the suspension, shema lo, you must obey him. 5.4

Restriction of the tradition

The rabbis both appropriated and restricted the tradition of the prophet-like-Moses.38 The interpretation which cited Elijah as an example of the authority conferred in Deut. 1839 became the basis of a rabbinic power of legislation in emergency situations.40 Appropriation was facilitated by an interpretation, that the prophet does not have to perform miracles in proof of his status provided that he is mum˜eh lekha shehu tsaddik gamur,41 publicly known to be righteous. The principle was adopted that eyn navi rashai le˜addesh od davar mexattah: a prophet has no greater power to innovate than a rabbi,42 and this was graphically illustrated in a comment by Maimonides: Even if 1000 prophets like Elijah and Elisha take one view, and 1001 rabbis take an opposite view, we follow the majority.43

To say that, however, seems at the same time to make a vital concession: each prophet, though counted as no more than a single rabbi, is at least counted as that. What would Rambam’s view have been had the numbers been reversed, had 1000 rabbis been opposed by 1001 prophets? On the face of it, the implication seems not to be totally excluded, that majority opinion is not necessarily that of the rabbinic authorities.44 38 For a summary of rabbinic attitudes towards the relationship between prophecy and law, see Stone 1992:ss.III and IV. 39 Yeb. 90b, Sifre ad Deut. 18:15, supra 27. 40 Cf. Elon 1978:I.426. 41 Rashi ad Deut.18:21. 42 Sifra ad Lev. 27:34, Behukkotai 13:7. See also Stone 1992:172, on Deut. Rabb. 8:6. 43 Mishnah Commentary, Preface. 44 A traditional response I have encountered to this point is to say that Maimonides contemplates only prophets who are also recognised as halakhic experts.

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Some aspects of rabbinic restrictiveness of the “prophet-like-Moses” tradition appear directly to allude to Christian concerns. The Baraita in Sanh.90a records that if a prophet seeks “partially to conrm and partially to annul (a law of the Torah), R. Simeon exempts” (but by implication the majority condemn). From the rabbinic standpoint, this could well be a description of the approach of the Sermon on the Mount. Again, the phrase yakim lekha (Deut. 18:15) attracts a comment in Sifre (ad loc.) that this means velo lagoyim: a “prophet-like-Moses” will minister to the Jews, not the gentiles. This sounds very much like an argument designed to rebut any suggestion that Jesus had fullled this role. It is, in fact, possible to assemble an impressive list of institutions where rabbinic law appears to have developed in response to the growing inuence of the Christian story. We might view in this light rejection of the authority of the bat kol 45 (contrast the role of the $     on the occasions of the baptism and transguration of Jesus); the rejection of miracles in proof of halakhic propositions (as still attempted by R. Eliezer in the famous story of the oven of Akhnai, B.M. 59b); the rejection by the rabbis of testes singulares, used in the New Testament in proof of the divinity of Jesus;46 and indeed the disappearance in Palestine (but not in Babylonia) of extra-legal reasoning in judicial decision-making.47 5.5

Historical summary

We are now in a position to summarise the development of the status of the “prophet-like-Moses” in relation to the law in both Christian and Jewish sources. There existed both eschatological and non-eschatological models of the “prophet-like-Moses” in the Second Commonwealth period, with corresponding differences in relation to the Law. The noneschatological prophet was viewed in terms of the sectarianism of the period: he could authorise individual actions which suspended the Law, teach his sect his own interpretation of the law, and judge individual cases against the Law. Of these three functions, the rst is directly and the third indirectly attested in the rabbinic sources and the second is manifested at Qumran. Reections of all three are found in the New

45 46 47

Baba Metsia 59b; see also Jackson 1979a:46. See ch. 4, infra. Ben-Menahem 1991:55–98.

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Testament, sometimes in the context of the rst phase of an overtly two-phase historical account in which the historical Jesus represents the non-eschatological “prophet-like-Moses” while the eschatological prophet, who will possess the power to abrogate law—a model denied by the rabbis but anticipated in the Qumran Community Rule—is identied with the Jesus of the Second Coming (Matthew, Acts). Ultimately, Rabbinic Judaism decided that it had had enough of the whole concept. The continuation of prophecy was denied48 and even the power of the prophet to suspend the law in particular cases came to be transferred to the rabbinic law court itself. Even the great Moses himself, the very source of the tradition (“There has never yet risen in Israel a prophetlike-Moses”—Deut. 34:10–12) came to lose his prophetic identication and became Moshe Rabbenu. The tradition that an eschatological Elijah would come to resolve outstanding doubts in the law survived, but on the whole Judaism preferred to leave the question of the status of the law in the eschatological age in respectful silence. APPENDIX

On Prophecy and Analogy49 My argument raises questions about the nature of prophecy in the Judaeo-Christian tradition, and particularly about the notion of fullment of prophecy which is so central to both Judaism and Christianity. There is a tendency in secular discourse to regard the prophetic function as something magical, something primitive, something which we cannot quite take at face value: the prophet writes or preaches a prediction that a certain event will happen in the future; in the future that event quite unselfconsciously occurs; and then the prophecy is taken to have been fullled. I do not believe that this was the way fullment of prophecy was conceived to work. Rather, it was open to a member of the community, having read or heard a prophecy from an earlier era, to set about carrying it out—deliberately to imitate what had been written earlier on—and then to claim fullment of the prophecy. This was not conceived to be cheating, since God would only permit such

48 See further Stone 1992:175ff. for an insightful analysis of Sifre Deut. 41, and its relationship to the chain of tradition in M. Avot 1:1. 49 For a sensitive development of this theme, see Stone 1992:s.II.

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actions to be done and to be recognised as a fullment if he really did intend the prophecy to be fullled in that way. There is, therefore, no embarrassment in the claim of the Gospels that Jesus performed certain actions50 “in order that the prophecy of . . . should be fullled”. Perhaps it was this very phenomenon which prompted what I see as a development from fullment of prophecies at the level of narrative structure to fullment of literary analogies, which call for more detailed knowledge of the sources, and which, as we nd them in the gospels, can rest upon allusion to a combination of earlier sources.51 Prophetic fullment, as here described, rests upon particular conceptions of the nature of the language of revelation, and of the use of analogy in ascertaining, indeed constructing, its meaning. Prophecy therefore must take its place as part of a wider account of the development of Jewish epistemology.52 Within such a wider enterprise, a developmental view of the forms of analogy may contribute to our understanding of the process which led to the complex of prophetic claims which characterise the gospels. The distinction between narrative and literary analogy may be understood within such a developmental account.

50

Such as authorising the taking of the foal—section 4.3 supra. As in Kermode’s arguments, infra 39f., especially his account of the thirty shekels of silver. 52 This theme is taken up in Jackson 1991, 1992a, 1993. 51

CHAPTER THREE

THE TRIALS OF JESUS AND JEREMIAH 1. The Difculties facing an Historical Account Volumes have been written on the trial of Jesus. There are many apparent anomalies in the accounts of the trial and many problems from the viewpoint of the legal historian.1 The problems are twofold, literary and historical: on the one hand, the gospel accounts themselves contain notable internal discrepancies; on the other, the story they tell is signicantly at odds with contemporary law and practice, both Jewish and Roman. As to the internal coherence of the gospels, just a few of many discrepancies may be noted:2 (1) The arrest: the Synoptic Gospels see the arrest as made by an armed crowd sent out by the Jewish authorities (variously described)3 alone, while John writes that the arrest was carried out by a cohort of Roman troops in company with “the ofcers from the chief priests and the Pharisees”.4 1

See especially Winter 1961; Brandon 1968; Cohn 1967, 1971; Derrett 1970:389–460. Still important is the study of Bickermann 1935. 3 Mark 14:43: “And immediately, while he was still speaking, Judas came, one of the twelve, and with him a crowd with swords and clubs, from the chief priests and the scribes and the elders”; Matt. 26:47: “While he was still speaking, Judas came, one of the twelve, and with him a great crowd with swords and clubs, from the chief priests and the elders of the people”; Luke 22:47: “While he was still speaking, there came a crowd, and the man called Judas, one of the twelve, was leading them . . . (52) Then Jesus said to the chief priests and ofcers of the temple and elders . . .”. 4 John 18:12: “So the band of soldiers () and their captain (  ) and the ofcers of the Jews seized Jesus and bound him.” Cf. Winter 1974:ch. 5, noting that it is particularly remarkable that John has Jesus arrested by Roman military personnel, given the decidedly anti-Jewish feelings shown by John throughout. Indeed, John places the burden of responsibility for the death of Jesus on the shoulders of the Jews and exonerates the Governor completely. All the more striking, argues Winter, that he seems to preserve what may be an early and authentic tradition of the arrest by Roman troops. See also Winter on the relationship between John 18:12 and John 18:3: “So Judas, procuring a band of soldiers () and some ofcers from the chief priests and the Pharisees, went there with lanterns and torches and weapons”, the latter perhaps seeking to conate the two traditions. 2

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(2) The charge: while the charge in the Jewish hearing is ultimately blasphemy in Matt. 26:65 and Mark 14:64, in both accounts the condemnation is followed immediately by a contemptuous challenge to the prophetic status of Jesus: “Now, Messiah, if you are a prophet, tell us who hit you” (Matt. 26:68), suggestive of an account in which the charge had actually been false prophecy.5 No charge is mentioned in either Luke or John. (3) Time and place of the Jewish proceedings: Mark and Mark have two phases of procedure before the Jewish authorities: at night, they led Jesus “to the high priest . . . And Peter had followed him at a distance, right into the courtyard ( ) of the high priest (Mark 14:53–55, suggestive that this is the private residence of the High Priest, cf. Matt. 26:57–59); “And as soon as it was morning the chief priests . . . with the elders and scribes, and the whole council (    ) held a consultation” (Mark 15:1, cf. Matt. 27:1). In Luke it is stated explicitly that Jesus was taken at night to “the high priest’s house” (  , 22:54), but the questioning does not occur then or there: “When day came . . . they led him away to their council” (   , 22:66).6 John has Jesus taken at night7 rst to the father-in-law of Caiaphas, Annas (himself a high priest), then to Caiaphas, then the following morning8 to the praetorium. (4) Identity of the body conducting the Jewish proceedings: Mark stresses the involvement of “the whole council (    )” at both stages of the Jewish proceeding, the morning proceeding being conducted by “the chief priests, with the elders and scribes, and the whole council” (15:1); Matthew fails to mention either the scribes or the Sanhedrin in relation to the morning proceeding (27:1); in Luke it is “the assembly of the elders of the people [who] gathered together, both chief priests and scribes” and who led Jesus to the Sanhedrin (22:26); John records no meeting of the Sanhedrin,

5 Cf. Jeremias 1961:79, arguing also that execution for this crime was required to be carried out at a feast “before all the people”. 6 Leaney 1966:274 comments that Luke’s account “seems like a correction of the unlikely procedure in Mark of holding an inquiry in the middle of the night and another meeting in the early morning”; cf. Kermode 1979:96f. 7 The arrest is made “with lanterns and torches” (18:3). 8 18:28: “Then they led Jesus from the house of Caiaphas to the praetorium. It was early.”

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nor even the presence of other high priests, elders or scribes at the interrogation by Annas. (5) The high priest’s question and Jesus’ reaction: In Mark, Jesus eventually responds to the question of the high priest: “Are you the Christ, the Son of the Blessed?” with the words: “I am (   ); and you will see the Son of man seated at the right hand of Power, and coming with the clouds of heaven,” which is immediately interpreted by the high priest as a confession of blasphemy (14:62–64); in Matthew, the question is: “tell us if you are the Christ, the Son of God”, to which Jesus retorts “You have said so (  ). But I tell you, hereafter you will see the Son of man seated at the right hand of Power, and coming on the clouds of heaven.” (26:63–66), but this is interpreted as a confession, as in Mark; in Luke, the question to which Jesus responds is: “Are you the Son of God, then?” (after a question about “the Christ” is avoided) and he replies, without more: “You say that I am” (!" ), again interpreted as a confession (22:70–71); in John, there is no specic accusation: “The high priest then questioned Jesus about his disciples and his teaching” and Jesus replies that he has always preached publicly, and the question should be posed of his audience (18:19–21). (6) Did the Jews claim the right to exercise capital jurisdiction?9 John 18:31 has the Jews deny that they have jurisdiction to condemn an accused to death: “It is not lawful for us to put any man to death”;10 Mark and Matthew have the Sanhedrin effect just such

9 There is no need, in my view, to resolve this issue in historical terms. If the Jews had capital jurisdiction, it does not follow necessarily that they exercised it, or exercised it independently of Pilate’s imprimatur. If they did not have it, it remains possible that they proceeded nonetheless—a possibility suggested by Josephus’ account of the trial and execution of James, Ant. XX.200: “Ananus thought that he had a favorable opportunity because Festus was dead and Albinus was still on the way. And so he convened the judges of the Sanhedrin and brought before them a man named James, the brother of Jesus who was called the Christ, and certain others. He accused them of having transgressed the law and delivered them up to be stoned” (Feldman’s translation, Loeb edition)—despite the claim of Josephus (at 202; see further Schürer 1973:II.222–223) that the Sanhedrin was not allowed to meet without the consent of the governor. We are not told here the nature of the charge, but the penalty is stoning (not hanging or crucixion). Against the authenticity of this passage, see Rajak 1983:131 n. 73. For a detailed review from the Roman sources, see Schürer 1973:II.219–20 n. 80. 10 In context, this is a denial of capital jurisdiction, and not merely of the power to execute a capital sentence without the consent of the Roman authority, since it appears as a response to Pilate’s invitation: “Take him yourselves and judge him by your own law.”

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a condemnation (“What is your decision?” And they all condemned him as deserving death” (   #    $% —Mark 14:64); “What is your judgment?” They answered, “He deserves death” ( & ' (  $ , )  $%  *)—Matt. 26:66. Luke, though recording a proceeding before the Sanhedrin, mentions no verdict given by it.11 (7) The charges before Pilate: these are not stated in Mark or Matthew, but are left to be inferred from Pilate’s question: “Are you the King of the Jews?” (8, below); following that, the accusers level “many [unspecied] charges” (Mark 14:4, Matt. 26:13–14). In Luke, we nd a much more specic accusation: “We found this man perverting our nation, and forbidding us to give tribute to Caesar, and saying that he himself is Christ a king” (23:2), then (after the   ) “He stirs up the people, teaching throughout all Judea, from Galilee even to this place” (23:5). In John, “Pilate went out to them12 and said, “What accusation do you bring against this man?” They answered him, “If this man were not an evildoer (  + ), we would not have handed him over” (18:29–30), but this leads Pilate eventually to put the “King of the Jews” question to Jesus (18:33). (8) Pilate’s question and Jesus’ reaction: The pattern of reluctance and ambiguous answer is followed also in the accounts of the interrogation by Pilate. In all four Gospels, the question posed is “Are you the King of the Jews?” (Mark 15:2, Matt. 27:21, Luke 23:3, John 18:33), but here the “you say so . . .” form of response (  , in all three), echoing that to the high priest in Matthew and Luke (5 above), and found here in all three synoptics (but not in John, where the answer is theologically puzzling to Pilate, leading him to the question: “What is truth?”) is not interpreted by the interrogator as a confession, as is shown by the continuation of accusations (and Jesus’ silence in the face of them) and the nature of Pilate’s response (especially in Luke).13

11 Cf. Flusser 1973:12. Winter 1974:41, argues against the view that this is due to Luke’s carelessness in copying Mark, noting that the author of Luke-Acts allows Paul to say in Acts 13:27–28: “The inhabitants of Jerusalem and their rulers . . . nding no cause of death [in Jesus], asked Pilate that he should be killed.” 12 Presumably, the High Priest and his entourage; see (4) above. 13 It is noteworthy that the Synoptics are more consistent here than in (5) above, but this consistency may have more to do with the literary patterning of the relationship between the two interrogations than with the historicity of the dialogue.

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(9) The attitude of Pilate: in both Luke and John, Pilate explicitly seeks to exonerate Jesus: “And Pilate said to the chief priests and the multitudes, ‘I nd no crime in this man’ ” (Luke 23:4, cf. John 18:38, where the audience is “the Jews”), whereas in Mark and Matthew the result of the interrogation is that Pilate “wondered” ($%- , Mark 15:5, Matt. 16:14). (10) Luke, uniquely, includes some form of hearing before Herod Antipas (presumably in his capacity as tetrarch of Galilee).14 (11) The relations between the Jewish authorities and the crowd: in Mark (15:11–15), it is “the chief priests [who] stirred up the crowd to have him release for them Barab’bas instead,” and Pilate, “wishing to satisfy the crowd” (who are shouting: “Crucify him”), accedes to their request. Matthew’s account is similar: “Now the chief priests and the elders persuaded the people to ask for Barab’bas and destroy Jesus” (27:20). Luke, by contrast, has the leadership join in the shout: “But they all [“the chief priests and the rulers and the people”, 23:13] cried out together, “Away with this man, and release to us Barabxbas” (23:18). John does not mention “the crowd” at all; though he refers on occasion to “the Jews”, in context this means “the chief priests and the ofcers”, and it is they who shout “Crucify him, crucify him!” (19:6). Equally difcult is the relationship between the gospels and contemporary law, both Jewish and Roman. As to the former, Kermode summarises some of the difculties:15 Many scholars accept that there could not have been a night trial before the Sanhedrin;16 that although it is true that capital sentences had to be

14

Leaney 1966:280, comparing the role of Agrippa in the trial of Paul in Acts 25:13ff. According to Luke 13:31–32, Herod Antipas, who had already executed John the Baptist, sought also the death of Jesus. See Schürer 1973:I.349–50; Flusser 1973:11. See also Sherwin-White 1963:31, on the principles of forum delicti and forum domicilii. The possibility that Luke is here taking seriously the formal jurisdictional position may be supported by the fact that he does not present the Jewish hearing as a meeting of the Sanhedrin, but rather as a preliminary investigation before the High Priest; the formal jurisdiction of the Sanhedrin at that time was limited to the 11 toparchies of Judaea proper. Scheler 1990 sees a diplomatic reason for Pilate’s “referral”, and notes that Pilate had been reprimanded by the emperor Tiberius for offending the Jewish leaders on two previous occasions. 15 1979:112. The annotations are mine. See further literature cited n. 1, supra. See here also Blinzler 1959:149–157. 16 See M. Sanh. 4:1.

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chapter three conrmed the following morning,17 this could not be done on a feast day; that no accusation of blasphemy could have succeeded on the evidence;18 that even if it had, the penalty would have been stoning and the matter would not have gone before the Roman governor.

Additional problems arise in relation to the reliance upon a confession,19 and perhaps also the absence of “forewarning”.20 As for the relationship to Roman Law, the release of Barabbas is perhaps the most noted problem.21 It is far from clear that a Roman 17

See M. Sanh. 5:5. M. Sanh. 7:5 (death by stoning only where the tetragrammaton was uttered after hatraxah); in B.T. Sanh. 56a this is extended to cover use of one of the divine attributes, but this was later regarded as giving rise only to ogging. See esp. Cohn 1971:129–134, though also rejecting the false prophecy hypothesis. Various attempts have been made to explain the blasphemy charge. Derrett 1970:453–55 interprets killel as “defames”, “undervalues” (comparing Lev. 20:9), but it is not clear to me how, even if correct, this would assist the argument. Levy 1981:60–62 argues that the Gospel accounts of the trial of Jesus demonstrate a broadening of blasphemy to include not only reviling God but also “claiming his kinship, powers, attributes or honors.” For criticism, see Ball 1983:1007ff. A strained attempt has been made by Betz 1988:6–7 to explain the blasphemy charge in terms of 1st century interpretation. He argues that the Temple Scroll 64:6–13, in its interpretation of Deut. 21:23 kilelat elohim, extends blasphemy to cover treason. Certainly, Deut. 21:23 is there understood as an offence of (what we might call) treason: “If a man has informed against his people and has delivered his people to a foreign nation . . . If a man has committed a crime punishable by death and has run to the midst of the Gentiles and has cursed his people and the children of Israel” (Baumgarten’s translation, 1977:173). But this does not make it an offence of blasphemy merely because of the common terminology of killel with Exodus 22:27. Moreover, there is not the slightest connection between the offence of “blasphemy” as here constructed in the Temple Scroll and the “confessions” of Jesus in Mark and Matthew, which prompt the condemnation for . /0. More generally, we should beware of too ready assimilation of the Greek concept of . /0 in the New Testament with those Hebrew concepts which, for convenience, we refer to by the English word “blasphemy”. The Greek term is not used in the LXX to render the “blasphemy” references in any of Exod. 22:27, Lev. 24 or I Kings 21 (the accusation against Naboth, on which see further infra section 5); on its use elsewhere in the LXX, see Sanders 1990:58. Sanders 1990:57–67 has reviewed the issue, noting the wide range of the Greek root as seen also in Philo and Josephus, but hesitating to use this as evidence of a legal usage which would justify the synoptic trial accounts. He concludes that the case for blasphemy in Mark 2:1–12 is “extremely weak” (1990:63), and that “there is no obvious or straightforward instance of blasphemy in the Markan trial scene” (1990:65). Nevertheless, he suggests that the overthrowing of the tables in the Temple might have been considered “an affront to God and thus blasphemous” (1990:67). 19 Tosefta Shebuot 3:8; Sifre Deut. ad Deut. 19:15 = Tosefta Shebuot 5:4; Tosefta Sanhedrin 9:4, 11:1. See Mendelsohn 1891:133f.; Kirschenbaum 1970:34–49. 20 The rabbinic hatraxah: T. Sanh 11:2: “If he be warned and answer nothing, or if he be warned and nod his head, or even say, “I know,” he cannot be made liable to the death penalty; he is not liable until he say, “I know; but even so I am committing the offence.” We should not, however, assume uncritically that all aspects of Mishnaic law and procedure are to be read back to the early rst century. 21 Kermode, 1979:69f.: “It is most improbable that there could have been an event 18

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prefect (a lesser status than that of procurator)22 had the power to pardon a person convicted of a capital offence. Equally unclear is the extent of his powers of delegation, both of investigative and police powers, such as would be needed to make historical sense of the relations between the Jewish and Roman authorities.23 Nor, when it came to the Roman hearing, is it clear whether there would have been a charge under Roman criminal statutes (and, if so, which)24 or under the more general procedure extra ordinem.25 2. The Trial as a Literary Construction An alternative approach to the trial narratives is to view them not according to the criteria of history, but rather of literature—as a literary text constructed to allude to a wide variety of Old Testament texts, with the theological purpose of showing that Jesus was himself the fullment of prophecy. There is no doubt that the Passion narratives contain an immense amount of Old Testament allusion. Kermode offers the following catalogue:26 The false witnesses at the Sanhedrin trial full texts in Psalms 35 and 109; the silence of Jesus before his accusers fulls Psalm 38 (“I behave like a man who cannot hear and whose tongue offers no defence,” here assimilated to the “malicious witnesses . . . question me on matters of which I know nothing” of Psalm 35) and from the Suffering Servant passage in Isaiah 35 (“He was aficted, he submitted to be struck down and did not

corresponding to the release of Barabbas; that story may arise from an ideological need to distinguish Jesus from the zealots and freedom-ghters of the period . . .” 22 Meier 1986 notes that Tacitus (see 48, infra) was in error in describing Pilate as a procurator, as now shown from an inscription discovered at Caesarea Maritima in 1961. 23 Cohn 1971:11. 24 Burkill 1970; Winter 1974:10, who regards Jesus as having been condemned for sedition under the Lex Cornelia de Sicariis et Venecis (Digest XLVIII.8.3.4), and quotes Paul, Sententiae 5.22.1 for the availability of crucixion here: auctores seditionis et tumultus vel concitatores populi, pro qualitate dignitatis, aut in crucem tolluntur aut bestiis obiiciuntur aut in insulam deportantur. Others have suggested the lex Julia de Maiestate. 25 Sherwin-White 1963:ch. 2 argues that a general charge before Pilate, rather than a charge of a specic offence against Roman statutory criminal law, was compatible with jurisdiction extra ordinem. Against the notion of any Roman “trial” at all, see Millar 1990:378. 26 1979:110. See also Kermode, at 1979:85, on the use of Psalms 41:9, “Even my bosom friend, whom I trusted, who ate of my bread, betrays me”; at 1979:86, on the 30 pieces of silver (Zechariah 11:12); and at 1079:106 on Psalm 22.

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chapter three open his mouth”). The spitting and buffeting are related to a whole cento of texts; the covering of the face has been traced to a misunderstanding of another Suffering Servant verse (53:3). Matthew omits it, Luke adds a bit of narrative to explain it. The blows of the servants full Isaiah 50:6. As to the Crucixion, Mark “contents itself with portraying the picture of the crucied in a few verses according to the ‘Passion Testimonies.’ ” Mark has wine mingled with myrrh, from Proverbs 31; Matthew, reworking him, remembers Psalm 69 and substitutes gall for myrrh. The division of garments fulls Psalm 22; the eclipse, the last words, the vinegar and the death cry all have Old Testament sources. This list could be much longer . . .

Amongst theologians, however, one text has enjoyed primacy as the model for the trial and death of Jesus: the Suffering Servant song in Isaiah 53.27 Lane’s commentary on Mark, for example, nds in Isa. 53:4–12 “an account of obedient suffering, expressed by the sustaining of mockery, by silence before accusers, by forgiveness, by intercession for the many, by burial with the condemned . . .”28 But the Suffering Servant passage in Isaiah is notoriously difcult. The establishment of the Hebrew text is not without its problems, and it is virtually impossible for a translator—particularly a Christian translator—to approach it entirely independently of its christological use.29 Take the passage from Lane, here quoted. The terms “accusers” and “burial” suggest trial on the one hand, execution on the other. But neither element is clearly present in Isaiah.30 Indeed, it is quite possible to read the Suffering Servant passage as the song of a servant who was oppressed but saved, and who did not suffer death.31 A comparison of the New English Bible with older translations32 is instructive. The Servant is certainly threatened with death, but in the event the Lord “healed him who had

27 A view not conned to theologians. See also Derrett 1970:451–53, suggesting two trials in the narrative identied through the poetry. 28 Lane 1974:487. 29 E.g. “pierced for our transgressions” (Isa. 53:5, NEB), where the Hebrew is me˜olal ( JPS: “wounded”). In uve˜avurato nirpa lanu ( JPS: “and by his bruises we were healed”), we may well have a reection on the talionic formula: ˜avurah ta˜at ˜avurah (Exod. 21:25). 30 The closest the text comes to any reference to law is in “without justice, he was taken away” (v. 8: me{otser umimishpat lukka˜). As for execution, the closest is “He was assigned a grave with the wicked, a burial place among the refuse of mankind” (NEB, v. 9: vayitten et resha{im kivro). 31 After writing this, I found that Whybray 1990 has comprehensively analysed the Hebrew of the song and come to this conclusion, in his monograph signicantly entitled Thanksgiving for a Liberated Prophet: An Interpretation of Isaiah Chapter 53. 32 Including that of the Jewish Publication Society.

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made himself a sacrice for sin; so shall he enjoy long life and see his children’s children” (Isa. 53:10). Indeed, Lane himself comments that “Judaism was totally unprepared for a suffering and crucied Messiah” (1974:486). However, the theme of the threatened servant, who is prepared to sacrice himself, was well-known in Judaism: as in the story of Isaac. The Suffering Servant certainly contributes to the literary construction of the Passion, but its contribution is theological (vicarious atonement) rather than narrative (trial, death and resurrection). We may outline the following combination of major themes which contribute to the Passion: 1. A narrative of an obedient servant saved by God (Isaac). 2. A narrative of a prophet threatened in a trial but (again) saved ( Jeremiah).33 3. A liturgical song of an oppressed servant who suffers physical oppression to atone for the guilt of others, but is saved by God and healed (Isaiah). The rst two of these are narrative sources, the third poetic. I suggest that this is signicant in terms of the types and history of “prophetic fullment”. Consider the following analysis of Matthew’s story of the thirty pieces of silver, which the chief priests offer Judas to betray Jesus:34 Matthew invented this sum of money, but for him invention almost always follows a set form. His view of what might have happened is under the control of his respect for the Old Testament repertoire of Messianic prophecies and gures; so he nds his thirty pieces of silver in Zechariah (11:12): “They weighed for my price 30 pieces of silver.” There is no evident consonance between the context of this passage in Zechariah and Matthew’s new use of it. And although this silver sounds a plausible price—in the ordinary way passes the test of narrative plausibility—it is important to see that it belongs, in a sense, to another plot altogether, a plot founded on occult connections between the new narrative and many old ones, a plot not at all dependent on sequentiality or plausibility. There may be a constellation of texts, of which the new one is the essential illuminant, that which confers an ultimate, unsuspected meaning. But since this is a narrative, such consonances have to be inserted into the syntagmatic ow.

33 34

Discussed further in section 3 below. Kermode 1979:86f.

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Kermode argues that it is because of this lack of “syntagmatic ow” that “Matthew nds himself embarked upon a sub-plot”:35 He remembers two texts in Jeremiah: in the rst the prophet buys a ask at the potter’s house and breaks it at the burial ground, as a sign that the kings have lled Jerusalem with innocent blood; in the second he buys a eld for 17 shekels of silver; Matthew’s Judas confesses that he has betrayed the blood of the innocent, and casts his silver into the Temple (this is from Zachariah’s “I cast them into the Lord’s house”). Since such money could not be received in the Temple, the chief priests use it to purchase the potter’s eld to bury strangers in.

Matthew proceeds to build his “sub-plot” on these texts, and leads up to an explicit “fulllment citation” at Matt. 27:9–10. The importance of this analysis resides in the fact that the fulllment citation (to a narrative incident in Jeremiah) is made at Kermode’s level of sub-plot; the mere literary allusion, to Zechariah’s 30 shekels, with its lack of narrative analogy, was not regarded as sufcient to justify a fulllment citation. In fact, we need not rely upon a literary analogy for the source of the vicarious atonement theme within the Passion narrative. Von Rad sees the Servant himself as embodying the prophet-like-Moses tradition. For Moses himself not only mediates the Law but also, as Von Rad points out, “suffers . . . and at the last dies vicariously for the sins of his people.”36 There is an element of christological reading-back here too. Nevertheless, the Moses narrative does contain some elements which may have contributed not only to the Servant Song but also to the account of the Passion. Moses tells the people that it is “because of you” (lema{anhem) that God had refused him entry to the promised land (Deut. 3:26, cf. 4:21), which perhaps suggests vicarious guilt37 if not necessarily vicarious atonement; he stresses the forty days and nights he spent without food or water in interceding for the Israelites (Deut. 9:18, cf. v. 25); but the account of Moses’s passing (Deut. 34) is narrated entirely without theological overtones. But even if the narratives concerning Moses are taken into account within the construction of the Passion narratives, we still lack a basis

35

Kermode, ibid. von Rad 1968:227f., partially approved by North 1964:21, who also provides a detailed philological commentary (see esp. 238ff.) which acknowledges many of the complications while opting for a traditional translation. 37 But it is not a pure case. As the leader of the people, Moses bears some personal responsibility for their actions, even when they are contrary to his instructions. 36

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for the judicial process which forms so prominent a part of the gospel stories. 3. The Trial of Jesus and the Trial of Jeremiah The trial of Jeremiah supplies that basis.38 It provides a model for an entire narrative segment of the Passion narrative, rather than a source of literary allusion for some individual elements, phrases, etc. This is the account of Jeremiah’s trial, according to the translation of the Revised Standard Version. I have divided it into segments, for ease of analysis. A: (26:1) In the beginning of the reign of Jehoixakim the son of Josixah, king of Judah, this word came from the Lord, (2) “Thus says the Lord: Stand in the court of the Lord’s house, and speak to all the cities of Judah which come to worship in the house of the Lord all the words that I command you to speak to them; do not hold back a word. B: (3) It may be they will listen, and every one turn from his evil way, that I may repent of the evil which I intend to do to them because of their evil doings. C: (4) You shall say to them, ‘Thus says the Lord: “If you will not listen to me, to walk in my law which I have set before you, (5) and to heed the words of my servants the prophets whom I send to you urgently, though you have not heeded, (6) then I will make this house like Shiloh, and I will make this city a curse for all the nations

38 I have found no earlier version of this proposal in the literature on the trial of Jesus. Occasionally, however, some Christian commentaries on Jeremiah see in details of this story adumbrations of the passion. Thus Coffman and Coffman 1990:II:294, commenting on Jer. 26:7: “And the priests and the prophets and all the people heard Jeremiah speaking these words in the house of Jehovah”, observe: “that irresponsible and ckle Jerusalem mob, designated here as “all the people,” that is, the majority, started yelling for the death of the holy prophet. They were t ancestors indeed of the mob in that same city centuries afterwards who would cry, Crucify him! Crucify him!” On verses 12–15, they comment [at 297]: “like the blessed saviour himself, Jeremiah submitted to the powers of the government, but warned them of the consequences.” See also Blackwood 1977:194: “The role of all the people [v. 7] is ambiguous. Verse 8 shows them siding against Jeremiah, while verse 11 shows them neutral, verse 16 shows them supporting him, and verse 24 seems to indicate that they were against him. The situation may have been similar to Jesus’ experience on Palm Sunday and Good Friday, when large crowds shouted his praise and large crowds cried for his death.”

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D:

E: F:

G:

H:

I:

J:

chapter three of the earth.’ ” (7) The priests and the prophets and all the people heard Jeremiah speaking these words in the house of the Lord. (8) And when Jeremiah had nished speaking all that the Lord had commanded him to speak to all the people, then the priests and the prophets and all the people laid hold of him, saying, “You shall die! (9) Why have you prophesied in the name of the Lord, saying, ‘This house shall be like Shiloh, and this city shall be desolate, without inhabitant’?” And all the people gathered about Jeremiah in the house of the Lord. (10) When the princes of Judah heard these things, they came up from the king’s house to the house of the Lord and took their seat in the entry of the New Gate of the house of the Lord. (11) Then the priests and the prophets said to the princes and to all the people, “This man deserves the sentence of death, because he has prophesied against this city, as you have heard with your own ears.” (12) Then Jeremiah spoke to all the princes and all the people, saying, “The Lord sent me to prophesy against this house and this city all the words you have heard. (13) Now therefore amend your ways and your doings, and obey the voice of the Lord your God, and the Lord will repent of the evil which he has pronounced against you. (14) But as for me, behold, I am in your hands. Do with me as seems good and right to you. (15) Only know for certain that if you put me to death, you will bring innocent blood upon yourselves and upon this city and its inhabitants, for in truth the Lord sent me to you to speak all these words in your ears.” (16) Then the princes and all the people said to the priests and the prophets, “This man does not deserve the sentence of death, for he has spoken to us in the name of the Lord our God.” (17) And certain of the elders of the land arose and spoke to all the assembled people, saying, (18) “Micah of Moxresheth prophesied in the days of Hezekixah king of Judah, and said to all the people of Judah: ‘Thus says the Lord of hosts, Zion shall be plowed as a eld; Jerusalem shall become a heap of ruins, and the mountain of the house a wooded height.’ (19) Did Hezekixah king of Judah and all Judah put him to death? Did he not fear the Lord and entreat the favor of the Lord, and did not the Lord repent of the evil which he had pronounced against them? But we are about to bring great evil upon ourselves.”

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K: (20) There was another man who prophesied in the name of the Lord, Urixah the son of Shemaixah from Kirxiath-jexarim. He prophesied against this city and against this land in words like those of Jeremiah. (21) And when King Jehoixakim, with all his warriors and all the princes, heard his words, the king sought to put him to death; but when Urixah heard of it, he was afraid and ed and escaped to Egypt. (22) Then King Jehoixakim sent to Egypt certain men, Elnaxthan the son of Achbor and others with him, L: (23) and they fetched Urixah from Egypt and brought him to King Jehoixakim, who slew him with the sword and cast his dead body into the burial place of the common people. M: (24) But the hand of Ahixkam the son of Shaphan was with Jeremiah so that he was not given over to the people to be put to death. Most of the above segments nd signicant reections in the gospel accounts of the trial of Jesus.39 Thus: A: Jeremiah, like Jesus, preaches in the court of the Temple;40 B: He does so following a divine mission, but with no guarantee of success;41 C: He prophesies the destruction of the temple;42

39 In response to oral presentations of this material, I have been asked on a number of occasions whether the parallels here suggested are supported by linguistic parallels between the New Testament and the LXX version of Jeremiah 26 (in the LXX, ch. 33)—a version which differs in some details from the MT (e.g. the establishment prophets in LXX are described as “false prophets”). That begs a number of important problems regarding the sources of knowledge of Jeremiah (oral or written, and if the latter in which language) which might have been available to the NT writers. However, my principal response, which also begs questions which cannot be addressed here, is that the parallel is one of narrative line, rather than linguistic expression. Moreover, I am inclined to assume that the early form of communication of the story of the trial of Jesus was oral, and thus not itself xed linguistically. Nevertheless, a linguistic parallel such as the accusers’   in Mark 15:64 and parallels (LXX Jer. 33:11) may well be regarded as thematic rather than linguistic. In short, my argument does not rest upon linguistic dependence upon the LXX (or any other text), though this does not exclude points of inuence in the nal literary formulation. 40 Cf. Matt. 21:28ff.; Mark 12; Luke 19:47ff. In Matthew, his rst actions there are acts of miraculous healing: Matt. 21:14. 41 The same verb, shama (to listen, obey), is used in relation to Jeremiah’s mission as in the prophet-like-Moses text in Deuteronomy. 42 Cf. Matt. 24:1–2; Mark 13:1–2; Luke 21:5–6.

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D: There is priestly involvement in arresting43 and charging44 the prophet alleged to be prophesying falsely; E: There is some form of hearing in the Temple itself (i.e. within priestly jurisdiction);45 F: The secular authority then convenes a court;46 G: The priests take the lead in framing the accusation before the secular authority;47 H: The accused prophet defends himself, reasserting the genuineness of his mission; I: The secular rulers tell the priests that they have decided to exonerate the prophet;48 J: A parallel is cited from the prophetic mission of Micah; K: Comparison is made with the fate of another accused;49 L: The latter suffers execution by the secular authority;50 M: Jeremiah escapes this fate, but stress is placed upon the potential role of the people as responsible for the life-or-death decision.51 Whether Jeremiah is presented as coming like a prophet-like-Moses is not clear; certainly, he comes to command obedience to God’s (existing) law, and obedience to God’s prophets, on pain of divine punishment, is explicitly enjoined (A–C). It is in D–I that the most striking parallels

43

Cf. Matt. 26:47; Mark 14:43; Luke 22:52. Cf. Matt. 26:59ff.; Mark 14:55ff. 45 Cf. Matt. 26:57ff.; Mark 14:53ff.; Luke 22:54ff. 46 Cf. Matt. 27:11ff.; Mark 15:2ff.; Luke 23:1ff. 47 Cf. Matt. 27:12; Mark 15:3; Luke 23:2. Holladay 1990:31 notes that when the priests repeat Jeremiah’s offending words to the civil authorities, they omit his reference to the Temple and speak only of his prophesying against the city. “To the princes this would make the issue appear to be treason rather than a religious dispute.” 48 Cf. Matt. 27:23; Mark 15:13; Luke 23:4,14. 49 Cf. Matt. 27:15–18; Mark 15:6–15; Luke 23:18. 50 Cf. Matt. 27:32ff.; Mark 15:21ff.; Luke 23:26ff. (here, of course, Jesus, not the other accused). For the political background of the prophecy of Jeremiah and his life, see Nicholson 1975:1–10. He notes at 27 that the biblical record that Israel persistently rejected the preaching of the prophets, and that the suffering many of them had to endure [especially Jeremiah], as well as the execution of others, eventually gave rise to the legends of the martyrdom of many of the prophets [for example Isaiah]. It is this, he argues, that forms the background of Jesus’ saying “Oh Jerusalem, Jerusalem, the city that murders the prophets and stones the messengers sent to her!” (Matt. 23:37, Luke 13:34). See also Stone 1992:173 on Neh. 9:26 and rabbinic sources on the killing of prophets. 51 Cf. Matt. 27:20–23; Mark 15:12–15; Luke 23:18–26. 44

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occur. For we nd here, in the trial of Jeremiah, the same antithetical roles of priestly and secular authority as in the case of Jesus. Indeed, the story of Jeremiah suggests sources for what historians regard as two of the most perplexing features of the trial of Jesus, namely the dual procedure (E–F), and the privilegium paschale. Jeremiah’s fate, in escaping condemnation, is compared to that of another accused prophet, who was not so fortunate, just as the fate of Jesus comes to be compared with (indeed, bound up with) that of Barabbas. There is, of course, one difference between the trial of Jeremiah and that of Jesus. It is clear that the charge against Jeremiah was indeed false prophecy, that he claimed falsely to be speaking in the name of God. The explicit claims of the gospels are that the charge against Jesus was blasphemy. We have, however, seen that the gospels themselves do contain hints of a charge of false prophecy, and in narrative terms a charge of false prophecy makes a great deal of sense. Such a charge would give a far greater narrative coherence to the gospels as a whole: Jesus, who in his ministry was seen to exemplify the prophet-like-Moses (and who explicitly referred to the suspensory power in defending his authorisation of sabbath gleaning),52 is charged with having crossed that boundary with false prophecy to which the Deuteronomic text is so sensitive. But such a narrative would not, as Brandon (1971:124f.) has pointed out, be coherent with the fact of crucixion.53 A possible explanation for the choice of “blasphemy” is offered below.54

52

See 22f., supra. Some recent writings have sought to suggest a Jewish practice of crucixion: see especially Betz 1988:5–8 (to which Professor Welch kindly drew my attention). Betz’s starting point, the suggestion that the Jews in John 19:15 suggested crucixion as a Jewish penalty, appears unwarranted by the text: “They cried out, ‘Away with him, away with him, crucify him!’ ” But Pilate’s response: “Shall I crucify your King?” clearly implies his understanding that they were asking him to conduct the crucixion. This is not incompatible with the claim that follows, that “Then he handed him over to them to be crucied.” They asked for an execution by Roman law; he agreed, but authorised them to carry it out themselves. There is nothing here to suggest that the Jews understood crucixion as a Jewish form of capital punishment. Betz next refers to a passage in the Temple Scroll regarding hanging “on the wood”. In fact, the normal Hebrew word for tree is used in the passage (etz), and the passage (together with another apparent reference to crucixion in the Nahum Commentary) has been extensively discussed by Baumgarten 1977:172–182 (answering the question in his title, “Does TLH in the Temple Scroll Refer to Crucixion?”, in the negative). 54 See 50f., infra. 53

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chapter three 4. History and Literature

I do not suggest that the whole New Testament account of the life and death of Jesus was a literary ction, invented from nothing other than reection upon Hebrew Bible narratives. We do have some external sources, which may aid us in reconstructing an historical base-line. Notable is the statement of the Roman historian Tacitus, Annals 15.44,55 in describing the persecution of the Christians at Rome under Nero, that: Auctor nominis eius Christus Tiberio imperitante per procuratorem Pontium Pilatum supplicio adfectus erat (“Christus, the founder of the name, had undergone the death penalty in the reign of Tiberius, by sentence of the procurator Pontius Pilatus”).

The Antiquities of Josephus (XVIII.63–64) contains a passage about Jesus, the so-called testimonium avianum, which at least attests the historicity of Jesus, even if its christological claims may be attributed to other hands.56 Then there is a remarkable passage in the Slavonic version of Josephus’ Jewish War57 which, though in some respects clearly inuenced by Christian accounts,58 provides a sophisticated political account of the respective motivations of the parties:59 55 Written in 110 A.D. There is recent archaeological evidence that Pilate, however, was only a prefect and not a procurator. See n. 22, supra. 56 See Winter 1973; Baras 1987:338f., noting that Origen (185–254) twice criticizes Josephus for not having accepted Jesus as the Messiah (Contra Celsum I.47; Commentary on Matt. 10:17), while later Eusebius (260–339), cites the Testimonium Flavianum as evidence that he did. See also Cohn 1971:308–312. 57 II.174. On the Eisler/Zeitlin debate (n. 77, infra), see Bowman 1987:372–73 and 382 n. 61. See also Cohn 1971:312–16. The suggestion that the passage goes back to an original text of Josephus is based in part on a statement by Josephus himself in the preface to the Greek version that he wrote a book on the capture of Jerusalem in his native tongue, and that this formed the genesis of the Greek version. 58 The passage begins with a discussion of whether the wonder-worker should be called a man (cf. the testimonium avianum) or an angel, in the light of his appearance and works (which were “divine”); notes his activity as a healer; concludes with an initial exoneration by Pilate; then suggests that Pilate was bribed by a gift of “thirty talents”, as a result of which he gave permission to the Jews to crucify him. 59 Thackeray translation, Appendix to Loeb edition of Josephus, War, IV.648–650. Compare John 11:47–48: “So the chief priests and the Pharisees gathered the council, and said, ‘What are we to do? For this man performs many signs. If we let him go on thus, every one will believe in him, and the Romans will come and destroy both our holy place and our nation’.” “Go on thus” can hardly have been a reference merely to preaching and healing; it must be to something which the Romans would have regarded as threatening. The Slavonic Josephus may, of course, represent an interpretation of this passage.

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And many of the multitude followed after him and hearkened to his teaching; and many souls were in commotion, thinking that thereby the Jewish tribes might free themselves from Roman hands . . . And there assembled unto him of ministers one hundred and fty, and a multitude of the people. Now . . . when they had made known to him their will, that he should enter the city and cut down the Roman troops and Pilate . . . he disdained us not [variant: but he heeded not]. And when thereafter knowledge of it came to the Jewish leaders, they assembled together with the high-priest and spake: “We are powerless and (too) weak to withstand the Romans. Seeing, moreover, that the bow is bent, we will go and communicate to Pilate what we have heard, and we shall be clear of trouble, lest he hear (it) from others, and we be robbed of our substance and ourselves slaughtered and our children scattered.” And they went and communicated (it) to Pilate. And he sent and had many of the multitude slain. And he had that Wonder-Worker brought up, and after instituting an inquiry concerning him, he pronounced judgement.

Jesus was incited by others to lead a rebellion, the priesthood heard of it, feared it would fail with dire consequences to both the people and themselves, and decided to denounce Jesus to Pilate before the insurrection could begin, in order to avoid worse consequences. And nally there are the controversial Talmudic passages, some of which were censored since the Basle edition in the 16th century, not all of which may refer to Jesus,60 but of which at least one, that in Sanh. 43a, probably does.61

60 Sanh. 107b, placing Jesus in the time of King Jannai (104–78 B.C.); see Freedman 1935:II.736 n. 2, concluding: “And a Master said: Jesus the Nazarene practiced magic and led Israel astray.” See also Catchpole 1971:3. The passage also describes Jesus as a pupil of Joshua b. Perahyah (c. 100 B.C.E.). Encyclopedia Judaica ( Jerusalem: Keter, 1973), X.14–17 (this section translated from the Encyclopedia Hebraica) takes this to refer to the Jesus of the New Testament, but to reect later rabbinic uncertainty about his dating. See also the “Ben Stada” passage in Sanh. 67b (an execution on the eve of the Passover, at Lod, for enticing to idolatry, on which see Cohn 1971:303–308); Shab. 116a–b, reecting early Jewish anti-Christian polemic, though the object of derision is described merely as “a philosopher”. 61 See Schachter 1935:I.281: “It was taught: On the eve of the Passover Yeshu [Ms. M: the Nazarean] was hanged. For forty days before the execution took place, a herald went forth and cried, ‘he is going forth to be stoned because he has practiced sorcery and enticed Israel to apostacy. Anyone who can say anything in his favour, let him come forward and plead on his behalf.’ But since nothing was brought forward in his favour he was hanged on the eve of the Passover [variant: and the eve of Sabbath]!—Ulla retorted: Do you suppose that he was one for whom a defense could be made? Was he not a Mesith [enticer: Deut. 13:9], concerning whom scripture says, Neither shalt thou spare neither shalt thou conceal him? With Yeshu however it was different, for he was connected with the government.” Catchpole 1971:6–9, argues for the historical authenticity of many of the details here, comparing “on the eve of Passover” with

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These sources, taken together and with what is common to the Gospel accounts, seem to me to establish the following: 1. There was an historical Jesus; 2. He had a considerable popular following amongst the Jews, who interpreted him in various theological ways, including the use of the “prophet-like-Moses” model; 3. He was in opposition to the Jewish establishment (especially the Temple priesthood) and was so perceived; 4. He was seen as a potential threat to stability by the Romans; 5. He was executed by the Romans. But then, after Jesus’ death, the story had rst to be understood and then told. The details could not be superuous or arbitrary: that was not the mode of sacred texts. The details, including the two-stage trial, were taken from the Hebrew Bible. We cannot, of course, exclude the possibility that there was an inquiry, or trial, of some kind, but we have no reliable evidence of it. What we do have is evidence of how the events (whatever they were) were understood and communicated. It was in such a way as to stress their theological signicance. The blasphemy charge, in particular, highlights the opportunities for combining historical and narrative accounts. On the one hand, the traditional Jewish (or at least biblical) understanding of blasphemy as an offense against both God and the king may well have been evoked, in its very bipolarity, by the combined offense which Jesus apparently gave to the high priesthood on the one hand, the Roman administration on the other. True enough, the purported dialogue in the Synoptics of the interviews with the high priesthood, in the context of which the blasphemy charge was pronounced, does not suggest “cursing” either

John 18:28; the mesith charge with John 18:19–24 (see also Wead 1969); the allegation of sorcery with Matt. 12.24, Luke 11.15, Mark 3.22; Contra Celsum II.9: “After this the Jew says: How could we regard him as God when in other matters, as people perceived, he did not manifest anything which he professed to do, and when we had convicted him, condemned him and decided that he should be punished, was caught hiding himself and escaping most disgracefully, and indeed was betrayed by those whom he called disciples?”; 1 Thess. 2:15: “for you suffered the same things from your own countrymen as they did from the Jews, who killed both the Lord Jesus and the prophets” (on which see Gilliard 1989—to which Prof. J. Welch kindly drew my attention). Contra, Cohn 1971:298–303, noting various incongruities in the talmudic passage, including the conict between hanging and stoning and ultimately concluding (307) that it probably did not refer to the Jesus of the New Testament.

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God or the king, even if the parallel accusation of setting oneself up as a “King of the Jews” (what according to the Slavonic Josephus Jesus was certainly encouraged by some of his contemporaries to do) could be construed as a “cursing” of the secular authority. Yet even without importing into the narrative of the trial of Jesus the literal particularities of the Hebrew Bible’s conception of blasphemy, it does seem that the choice of blasphemy may have been informed not just by historical events but by the connotations of the blasphemy offense, as indicated elsewhere in biblical literature. For there are three biblical narratives in which blasphemy is evoked, and it is possible to read connotations of all of them (with, perhaps, differing degree of conviction) into the choice made by the Synoptic writers at this particular point in the narrative. By far the most signicant of the three, for present purposes, is the accusation made by Jezebel against Naboth (I Kings 21). Here, Naboth is entirely innocent; all he seeks to do is to preserve his “vineyard”, “the inheritance of my fathers”, against King Ahab’s intimidatory offer to buy it. The accusation of Naboth stands as a paradigm case of false accusation, as is shown also by the manner and place of its citation in Sanh. 29a;62 it is pitched in terms directly evoking Exodus 22:28—“Naboth cursed God and the King”. Whether there is more to the parallel than this—as might be argued, perhaps, from the presence of the “vineyard” theme (cf. Isa. 5:1–7), we need not here investigate. Sufce it to say that the theme of the Jewish establishment falsely accusing, and procuring63 the death of, a wholly innocent citizen, who sought only to preserve the inheritance of his fathers, is well established, and within that theme blasphemy was a charge actually used. And there may be more. In the Talmud, Naboth’s death is not the end of his story: he lives on in spirit form, and is able to participate in the ultimate divine judgment on Ahab, and indeed in other revelations and manifestations.64

62 In the warning to be given to witnesses according to talmudic procedure—found at the very head of the Gemara’s commentary on the Mishnah’s treatment of the examination of witnesses. See also Sanh. 48b, where the double accusation, of cursing God and the King, is explained as not legally necessary, but as having been made (in Naboth’s case) in order to “increase the anger of the judges”—again stressing the conspiratorial aspect of the false accusation. 63 Hinted at in Mark 14:55–56: “Now the chief priests and the whole council sought testimony against Jesus to put him to death; but they found none. For many bore false witness against him, and their witness did not agree.” Cf. Matt. 26:59–60. 64 See Ginzberg, 1909–38:VI:312 n. 41 for sources; see also Sanh. 89a, 102b, Shabbat 149b.

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The same pattern of procuring witnesses to a false accusation is found in the trial of Stephen in Acts:65 Then some of those who belonged to the synagogue of the Freedmen (as it was called), and of the Cyrexnians, and of the Alexandrians, and of those from Cili’cia and Asia, arose and disputed with Stephen. But they could not withstand the wisdom and the Spirit with which he spoke. Then they secretly instigated men, who said, “We have heard him speak blasphemous words against Moses and God.” And they stirred up the people and the elders and the scribes, and they came upon him and seized him and brought him before the council, and set up false witnesses who said, “This man never ceases to speak words against this holy place and the law; for we have heard him say that this Jesus of Nazareth will destroy this place, and will change the customs which Moses delivered to us.”

A second narrative, that of the “blasphemer” in Leviticus 24, might also contribute to the connotations, though here I believe any literary connection is remote, a matter more of connotations possibly to be read in by an audience than those sought to be conveyed by the authors themselves. During the wandering in the wilderness, a quarrel arose between “a man of Israel” and “an Israelite woman’s son, whose father was an Egyptian”. The two quarreled, perhaps fought, and the latter “blasphemed the Name, and cursed”. The issue is presented as an unclear one: “They put him in custody, until the will of the Lord should be declared to them”. Moses consults God, who pronounces a verdict of death by stoning, and requires Moses to enact such a law for the future. Why the matter required oracular decision is not made clear: the recital of the pedigree of the defendant may well be relevant. In wider narrative terms, however, the point of the story will be understood as signifying the particular role of direct divine decision in a charge of blasphemy, so that the choice of this charge by the Synoptic writers may be taken to add further critical point to the criticisms at the high priesthood for handing Jesus over to Pilate. There is also a third narrative relating to blasphemy. Describing the fright of the people in the wake of the activity by Tiglath-Pileser in

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6:9–14. Schürer 1973:II.219 takes this as good historical evidence of the exercise of Sanhedrin jurisdiction over blasphemy. But we must take into account not only the literary relationships between the Old Testament and the New, but also those within the New Testament (a theme not here explored). In citing John 19:7 (as well as Matt. 26:65) in support of “the fact . . . that Jesus is said to have stood before the Sanhedrin on account of blasphemy”, they go beyond what is warranted by the text.

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disciplining Samaria and Damascus after the Syro-Ephraimitic War,66 Isaiah 8:21 paints a narrative image of a people, who “will pass through the land greatly distressed and hungry; and when they are hungry they will be enraged and will curse their king and their God, and turn their faces upward . . .”. The vision is evocative of the murmurings of the people against Moses during the period of the wilderness (perhaps an evocation also of the context of the blasphemer law of Leviticus 24), and it is clear that the “cursing” is vain, desperate, uninformed. This is not, as in the case of Naboth, a false accusation that someone blasphemed, but rather a prophecy that people will blaspheme for no reason. As in the case of the blasphemer in the desert, there is no prior reason for the offense; it arose in the heat of the moment, in the heat of the desert. Taken together, this literary corpus, when viewed in its syntagmatic relations within the Hebrew Bible, presents a kind of transformation: from a case where someone is truly accused of having factually blasphemed, and justiably suffers death, though at the hands of divine decision (Lev. 24); to a case of a knowingly false accusation of blasphemy, which results in death, brought about by the agencies of the secular authority and its judicial system (Naboth); to a fevered pronunciation of blasphemy, or the prophecy thereof, by people who know no better (Isaiah). Is it too far-fetched to see in the Gospel accounts a further element in this line, one in which, though the primary connotation is that of the Naboth story—the execution of an innocent upon a false charge of blasphemy—there is also a connotation now attached to the accusers themselves, one comparable to that of Isaiah’s prophecy regarding the actions of a people, oppressed and frightened by the prospect of outside intervention, who, in their own panic, blaspheme (from the viewpoint of the New Testament writers) by the very action which they take. 5. Moses, Jeremiah, Jesus: A Living Tradition The relations between the three gures of Moses, Jeremiah, and Jesus may be summarized in terms of family resemblance. There is a set of characteristics: each gure partakes of a considerable number of

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734, 732 B.C.; see Ridderbos 1985:5.

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them, though not of all. Thus, Moses performs miracles in proof of his authority, he is regarded as a prophet, he achieves the liberation of the Israelites from Egypt, he gives the law, he breaks the rst set of tablets and has to obtain another. Jeremiah is also a prophet, he is associated with the writing of divine revelation in the form of a book,67 his rst scroll is destroyed and has to be rewritten;68 he offers an authoritative reformulation of a law,69 he even offers a “New Covenant”,70 he preaches in the Temple against the very institution of the Temple71 and in language evocative of the authority of a prophet-like-Moses,72 and he is put on trial. Indeed, it has been suggested that Jeremiah may have consciously seen himself as the referent of the (then, perhaps, recently discovered) text of Deut. 18:15.73 Jesus performs miracles, he preaches in the Temple against at least some of the institutions of the Temple, he is seen by some as a liberation leader against the Romans, he proclaims authoritative new versions of the law, he suspends the law on particular occasions [in line with the rabbinic understanding of the authority of the prophet-like-Moses], he is accused in some accounts of false prophecy, he is put on trial. Many details could be added: the infant escape of both Moses and Jesus from genocidal decrees, the miraculous feeding of the people by both Moses (the procurement of the manna) and Jesus,74 the reluctance

67 “No earlier prophet [other than Moses] wrote down or dictated his material, as far as our evidence goes”: Holladay 1990:64. 68 Noted as a parallel with Moses by Holladay 1990:64. Should we view the cutting of his scroll as later transformed into the execution of the prophet himself ? 69 Jer. 34, supra, 15f. 70 Jer. 31, supra, 7f. 71 See Welch 1955:148ff. on the relationship between Jeremiah’s preaching regarding the Temple and the Josianic reform some years earlier. 72 Holladay 1990:17f. explicitly connects Jeremiah and the Deuteronomy 18 tradition, linking the phrases “whatever I command you you shall speak” [ Jer. 1:7] and “behold, I have put my words in your mouth” [1:9] with Deut. 18:18 [“I will put my words in his mouth, and he shall speak to them all that I command him”]. He suggests that no other call of a prophet in the Old Testament resembles this verse in Deuteronomy as closely. It attests to Jeremiah’s conviction that he is the prophet-like-Moses. From this task of being a prophet he shrank. But Moses, Holladay notes, had hesitated in accepting his own call [Exod. 4:1–17]. 73 Jacobson 1978:140, citing Jer. 15:16: “Thy words were found, and I did eat them; and thy words were unto me a joy and the rejoicing of my heart; Because Thy name was called on me, O Lord God of hosts.” Jacobson 1976:51 n. 5 cites earlier articles by Holladay (1962, 1964, 1966, all in JBL) on Jeremiah’s self-understanding as a prophet-like-Moses. 74 These rst two examples are both noted by Daube 1980:23f., in the course of a wide-ranging survey of typological connections, which stresses the rewriting of the earlier narrative in terms of the later. At 26f., he notes Josephus’ self-construction as

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of Jesus as compared to that of Moses, the opposition to both Jesus and Jeremiah from members of their own families,75 the walking on the water as compared with the parting of the Red Sea, the suffering of Jesus compared with the denial of access to the Promised Land to Moses. But we should have some methodological criterion of the signicance of such parallels, some dividing line—as suggested above—between what might and what might not reasonably have been intended to be communicated to whom. On this basis, it is perhaps important to distinguish the main narrative line from, on the one hand, narrative details, and on the other, theological interpretations of those narrative details. The Synoptic Gospels, at least, are not predominantly written in theological or even sermonic language. They evoke, in their style, the narratives of Genesis rather than the prophets or wisdom literature. Yet undoubtedly, some audiences would have existed who would have “read” the narratives in terms of a more sophisticated theological interpretation, for whom, no doubt, vicarious suffering and vicarious atonement would be more important than the details of who did what. And even to those for whom a straight narrative line was the most important factor, there is no such thing as fact or history without implications. To even the simplest Christian audience of the narrative line, the story is being told of the Lord Jesus, the Messiah, the Christ. That he should have perished in circumstances of such shame and disgrace required, above all, explanation and justication. There could be no language of explanation and justication other than that of the religious tradition itself. Nor is that religious tradition silent on the cycle of identication here suggested. In Matthew 16:13–14, we nd an historical claim that Jesus was identied by some with Jeremiah: Now when Jesus came into the district of Caesarexa Philipxpi, he asked his disciples, “Who do men say that the Son of man is?” And they said, “Some say John the Baptist, others say Elixjah, and others Jeremiah or one of the prophets.”

a second Jeremiah, and his reconstruction of the story of the surrender to the Babylonians in terms of Josephus’ own relations to the Romans. 75 Hengel 1981:64, comparing Mark 3:21 and 6:1–6 with Jer. 12:6 and 11:21. See also Jacobson 1976:57.

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We have seen that Elijah was explicitly identied with the prophet-likeMoses tradition by the Rabbis.76 In Acts 7, we have an account of Stephen’s defence in his trial. In it, he provides an account of biblical history designed to show how it leads coherently to Christianity. His account of Moses selects from the law the prophecy of a future prophet-like-Moses (as well as stressing other narrative details where parallels could be drawn): This Moses whom they refused, saying, ‘Who made you a ruler and a judge?’ God sent as both ruler and deliverer by the hand of the angel that appeared to him in the bush. (36) He led them out, having performed wonders and signs in Egypt and at the Red Sea, and in the wilderness for forty years. (37) This is the Moses who said to the Israelites, ‘God will raise up for you a prophet from your brethren as he raised me up.’ (38) This is he who was in the congregation in the wilderness with the angel who spoke to him at Mount Sinai, and with our fathers; and he received living oracles to give to us. (39) Our fathers refused to obey him, but thrust him aside, and in their hearts they turned to Egypt, (40) saying to Aaron, ‘Make for us gods to go before us; as for this Moses who led us out from the land of Egypt, we do not know what has become of him.’ (41) And they made a calf in those days, and offered a sacrice to the idol and rejoiced in the works of their hands. (42) But God turned and gave them over to worship the host of heaven, as it is written in the book of the prophets.

Elsewhere, too, Acts stresses the parallel with the prophet-like-Moses tradition. Peter proclaims: (3:16) . . . and now, brethren, I know that you acted in ignorance, as did also your rulers. (17) but what God foretold by the mouth of all the prophets, that his Christ should suffer, he thus fullled (18) . . . Moses said, “the Lord God will raise up for you a prophet from your brethern as he raised me up. You shall listen to him in whatever he tells you. And it shall be that every soul that does not listen to that prophet shall be destroyed from the people.” (23–24) . . . And all the prophets who have spoken, from Samuel and those who came afterwards, also proclaimed these days.

What is noticeable about this version is not only the selection made from Deuteronomy 18, one which not only explicitly identies Jesus with the prophet-like-Moses who will be sent in later days, but also the stress on his authority. That these two claims should be linked, with

76

Supra, 27f.

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this emphasis, lends great credence to the view that there was a real authority dispute regarding Jesus even during his lifetime. The Slavonic Josephus,77 too, provides an account of popular views regarding the status of Jesus: “Some said of him ‘our rst lawgiver is risen from the dead and hath performed many healings and arts,’ while others thought that he was sent from God . . .”

77 Considered by Eisler to derive at least indirectly from an aramaic original by Josephus—strongly contested by Zeitlin, who dates it to the 7th century. For the literature, see Schürer 1973:I.60–61. See further n. 57, supra.

CHAPTER FOUR

TESTES SINGULARES IN EARLY JEWISH LAW AND THE NEW TESTAMENT The sectarian evidence law at CD 9:16–23 may be divided into four components: A. A special evidentiary procedure whereby a capital case may be rendered “complete” (lines 16–20); B. A non-capital sanction to be imposed in a capital case on the evidence of two witnesses (lines 20–22); C. A statement of the sufciency of two witnesses in a case concerning property (lines 22–3); D. The same non-capital sanction as in B to be imposed in a case concerning property on the evidence of one witness (line 23). Recent discussion has concerned the interpretation of, and alleged parallels to, A.1 But before we enter into any comparison, it is necessary to decide some doubtful points in the text de novo. 1. The Meaning of CD 9:16–23 l[my rça rbd lk A 16 wh[ydyw awh twm rbd a dja awhw wh[yr harw hrwtb çya 17 wtwç[ d[ wdyb whbtky rqbmhw rqbml jykwhb wyny[l 18 ynpl çptynw bwçy a rqbml [ydwhw bçw dja ynpl dw[ 19 wfpçm lç rja 20 Every case in which a man transgresses the Torah, and his neighbour sees it, and he is one: If it is a capital case, and he makes it known in his presence with reproof to the mevaker, and the mevaker writes it down in his hand until he does it again before one, and he repeats, and he makes it known to the mevaker, if he (does it) again and is caught in the presence of one, his case is complete.

1

Levine 1973; Neusner 1973.

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The principal problem affecting the legal signicance of the passage is the question whether two or three separate offences are required before the case may be regarded as complete. Translators have differed on the matter.2 The main linguistic issue is whether weshav wehodiy{a lamevaker is to be construed as part of the clause commencing {ad {asoto. The interpretation of A as allowing single witnesses to only two separate capital offences depends upon such a construction, and also requires that {ad be given an hypothetical rather than a temporal force: the rst witness informs and the mevaker records “in case he should do it again in the presence of one [witness] and he returns and informs the mevaker ”. There is no easy answer to the construction of A. Frequent change of subject and stylistic variation make a number of different views possible. But both linguistic considerations and the overall structure of the passage point to three, rather than two, attestations. The latter involves a major difculty. To construe weshav . . . as part of the {ad clause involves either an illogicality or a tautology. The mevaker records the offence in case “he” (the offender) should do it ({asoto) again before one [witness], and (?) should return (weshav) and make it known (wehodiy{a) to the mevaker. If the subject of weshav is the second witness, as it is usually taken, he is not “returning”—unless we suppose that the text requires that the same single witness attest the separate offences, which is both inherently unlikely and difcult to square with the hem of the following wexim shenayim hem. If, on the other hand, it is the offender who is the subject of weshav (and he is, indeed, “returning” to his past offence), then the dependence of weshav on {ad implies a tautology with {asoto {od. Further, we may note that the emphasis in the formulation wexim shenayim hem wehem me{iydim . . . at the beginning of B (line 20) is difcult to explain if two witnesses have already been the subject of the preceding A. If the difference between A and B were that between two witnesses to separate but similar offences, and two witnesses to separate but dissimilar offences, the emphasis should be on davar xa˜er, not on the number two. These difculties disappear if we take the text to require three separate attestations. The conjunction {ad may bear its usual temporal connotation, and the choice between illogicality and tautology is

2 See Neusner 1973:199–202. Though Vermes takes the meaning to be two in his more recent translation (there quoted), he earlier inclined to three. See Vermes 1954:175. So also did Schechter 1911, note 26 ad loc.; Segal 1911:135.

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avoided. The subject of weshav is the offender, and it is independent of the {ad clause. The future contingency against which the rst offence is recorded is stated rst, then the actualization of that contingency. By yikhtevehu beyado {ad it is conveyed that the mevaker “will write it down in his hand and keep it against the time that he may do it again in the presence of a single witness”. If the offender then repeats the offence, and he (the second witness, already introduced by the words lifne xe˜ad in the {ad clause) reports it, and the offender repeats it [again] and is caught in the presence of [another] single witness, the case against him is then complete.3 The two difculties which remain are the frequent changes of subject, and the waw of weshav. Of these, the rst exists whichever way one reads the text. By taking the subject of weshav to be the offender, one does, indeed, require an abrupt change in the next word, wehodiy{a. But the alternative makes little sense, and itself requires a change of subject from {asoto to weshav which the analysis here presented makes unnecessary. The second difculty is also surmountable. While the sequence of imperfect tenses may, following Biblical practice, represent either protases or apodoses, the structure of the passage requires that they all be regarded as part of a continuing protasis. The alternative is to regard weyodiy{ehu, yikhtevhu, and weshav as (structurally) a continuing apodosis to the protasis xim devar mawet hux, and to take xim yashuv as the commencement of a new protasis, to which shalem mishpato forms the apodosis. On grammatical grounds this is not impossible, but neither is it likely. The initial waw of weyodiy{ehu may, following Biblical drafting (e.g. Exod. 21:3,6), signify the commencement of the apodosis. But if so, its function differs from that of the rst waw following xim yashuv (for it is impossible to take wenitpas as anything other than the

3 Shalem mishpato is enigmatic. While appropriate in circumstances in which a case is only gradually built up, it nevertheless has the ring of a euphemistic circumlocution for the death penalty. In the Community Rule the greatest sanction imposed is expulsion. See esp. 8:21–4, of ish . . . asher ya{avor davar mitorat mosheh beyad ramah ow birmiyah (probably based on Num. 15:30–31). But in CD the death penalty does appear to be envisaged. The one apparent case of its application, 9:1, is far from clear. But the implication from 10:1 seems plain: in general, the death penalty may be imposed (in accordance with Biblical law) as long as the witnesses are competent. Nevertheless, the Community Rule’s apparent aversion to capital punishment nds echoes in CD 12:3–6 and 15:3–5, where it is explicitly excluded for breach of the sabbath laws and oaths by the curses of the covenant. At 12:2–3 apostasy is made punishable by death, but this is expressed by incorporating the offence under Lev. 20:27!

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continuation of a protasis) as well as from those of all the other conjunctive waw’s in the passage. More important, it is impossible contextually to regard weshav as anything other than part of a protasis. From xim devar through to wenitpas lifne xe˜ad we have a single continuing protasis, the components of which are linked sometimes by waw conjunctive, at other times by xim. Series of clauses linked by waw into a single protasis are not unknown in Biblical law. The interjection here of an xim into the sequence appears as just one manifestation of stylistic variation, in which the passage abounds.4 In short, the view that weshav has the offender as its subject and commences a clause independent of {ad requires the waw to be understood as joining this clause to a preceding section or sections of a continuing protasis, from which emerges one long multi-clause protasis. But such a multi-clause protasis is in no way unacceptable. A different issue which arises from the procedural description given in A concerns the function of the “rebuke” and the need for its repetition. But though of considerable signicance, this has only a slight bearing upon the comparative issues presently to be discussed.5 Also doubtful is the signicance of wenitpas. Taken literally, it is more than a synonym for weraxah (1.17) or lifne (1.19). It means, as Vermes translates, that the offender be “caught in the act”. But it is unlikely that the full literal strength of the expression was intended as a legal requirement. Once again, its function appears to be stylistic variation. We may note that

4 Weyodiy{ehu (1.17)/wehodiy{a (1.19); im devar mawet (1.17)/we{al hahon (1.22); wehuvdal . . . min hataharah (1.21)/lehavdil hataharah (1.23); weshav/yashuv (1.19). 5 Unless, that is, the absence of reproof on the second occasion (taking the text over-restrictively) is regarded as the reason for a third attestation. The sectarian reproof has been compared to the rabbinic hatraxah, but it has more in common with (and may be the source of ) the rebuke in Matt. 18:15–17 and later Christian rules, such as those at S. Benedicti Regula, ch. xiii; Rules of Abraham of Kaškar, §12; Rules for the Monophysite Monks in Persia, §6 (the two latter in Vööbus 1960). Lev. 19:17, which is the basis of the sectarian reproof, is not taken to refer to hatra’ah in rabbinic sources. See v. Vliet 1958:54–59; Jackson 1972a:230 n. 7. I do not, however, exclude the possibility that hatraxah may have its origin in a shame-cultural punishment, such as was known to the sectarians and the early church. A different theory has been proposed by Falk 1972:I.119ff., who sees the warning given to an accused on conviction (cf. our “I shall be lenient this time, but I must tell you that should you appear before this court again . . . ”) as the origin of hatraxah. But in at least one important respect, Falk’s evidence is open to doubt. He regards the hatraxah of T. Sanh. 12:7 as the parallel tradition to the case of the persistent offender in M. Sanh. 9:5(a). But hatraxah is there an interpretation of shelo be{edim in M. Sanh. 9:5(b). The Tosefta reverses the order of the two mishnaic cases. On these texts, see further infra, 73–78.

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Josephus uses the equivalent Greek expression, , in a similarly loose fashion in a similar context.6 l[ ydy[m hw h ynç aw B ynman a dbl hrhfh ˆm çyah ldbwhw rja rbd rqbml h[ydwy çyah twar wybw h

20 21 22

But if they (the witnesses) are two, and they (each) testify to a different case, the man shall only be separated from the purity, provided they (the witnesses) are reliable, and that (each) made it known to the mevaker on the day he saw it.

The reading davar xa˜er in line 21 is that of Rabin. Schechter, in the editio princeps, read davar xe˜ad. Such a reading would certainly not be unintelligible. It would mean that the lesser sanction of separation from the purity was to be applied where there were two witnesses to a capital offence, even though they testied to the same capital offence (i.e. were contestes). The implication would then be that the normal requirement in capital cases was one of three witnesses. Such a rule is found in some other pre-rabbinic sources. Josephus has Jezebel procure three witnesses against Naboth.7 In stating the law of evidence, he again inclines to three, but does not exclude two: “Put not trust in a single witness, but let there be three or at the least two8 (          ), whose evidence shall be accredited by their past lives”.9 The Testament of Abraham, in its longer recension, explicitly regards three as the minimum, and this has been taken to represent old halakhah.10 Paul, as we shall see, also interprets Deut. 19:15 in terms of three.

6 Bell. Jud. II, viii, 8, 143–4, concerning Essene criminal law. On the further signicance of this text for our problem, see infra, 76f. 7 Ant. 8.358. Ginzberg 1909–38:VI.312 takes this account to “presuppose the older halakah, according to which, in cases involving capital punishment, three witnesses (or to be more accurate, one accuser and two witnesses) are necessary”. Cf. Marcus in the Loeb Josephus, vol. V, p. 765; v. Vliet 1958:28. 8 Note the signicant reversal of the Biblical order, showing again the natural emphasis on the rst numeral. Cf. the variant to HL 37, discussed in Jackson 1975:155f., and C. 4.21.20. 9 Ant. 4.219. This is a far stronger statement than that at Matt. 18:16, adduced by Rabin 1954:48. 10 A13. See v. Vliet 1958:49, 125 n. 312, 138 n. 494, quoting the translations of James and Box, and following Ginzberg (n. 7, supra), who refers to his own comments on the text at 1922:170 n. 5. At any rate, even if the author of the Testament of Abraham was a Jew (with Flusser, Enc. Jud. ii.129, against some earlier opinion), it is none too reliable a basis from which to draw conclusions as to the old halakhah.

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But though intelligible, xe˜ad does not appear to be what the scribe intended. Rabin reads xa˜er, as does Vermes in his translation, and the photographic edition clearly supports them. What, then, is the meaning? One might take davar xa˜er to mean “a different type of case”, the intention being to stress that where the evidence consists of single witnesses to separate offences (testes singulares), those separate offences must form part of a single class of actions. Such a requirement is not unreasonable. Scots and English law even today recognise circumstances is which corroboration may be provided by a single witness to a previous offence, as long as the acts concerned constitute a single “course of conduct”.11 Rabbinic law provides an analogy in the detailed application of the rules of mu{ad, which require (sometimes ad absurdum) that the previous warnings given to the owner should have related to exactly the same type of offence.12 It would, indeed, be incredible to suppose that the CD draftsman contemplated the sufciency of single witnesses to two different species of capital offence, so that, for example, the death penalty might be imposed where one witness testied to murder and a second to idolatry. But the requirement that there be some identity (its precise nature is not recoverable) between the several offences is expressed already in A itself—in the pronominal sufx of {asoto. Moreover, if B is no more than a gloss on A, why the stress on “two” witnesses? “If the witnesses testify to offences of a different class . . .” is all that would be needed. Indeed, if our understanding of A as envisaging three witnesses is correct, the introduction of “two” into B (B being taken as a gloss upon A) creates ambiguity. The situation where three witnesses testied to capital offences of different kinds would not be governed. Moreover, it is not easy to give the phrase davar xa˜er the meaning “offences of different kinds”, both because of the number, and because davar in the legal context means “a suit”, “a case”,13 not “a type of case”. In fact, the only distinction between B and A is that indicated in the opening words of B, wexim shenayim hem. Testes singulares are still contemplated, and this is the meaning of davar xa˜er. Each witness testies to a separate offence. But as there are only two, not three as in A, the case is not complete, and only an inferior sanction is imposed.

11 12 13

Infra, 97–110. E.g. M. B.K. 4:2. Jackson 1972a:241f., for texts and literature.

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If this is correct, neither A nor B tells us anything about the requirement in the more common situation, where the witnesses are contestes. If it were possible to read xe˜ad, with Schechter, so that B did refer to contestes, we would know that three witnesses were generally required to impose the death penalty. As it is, we can only surmise. It is not impossible that the rule was two contestes but three testes singulares—based, no doubt, on an exegesis of Biblical law. But the exegetical problem seems to have been solved more simply, by distinguishing capital and property cases. On the whole, three contestes seems a better reconstruction.14 The idea underlying B is that a lesser sanction is imposed where less than the ideal quantum of proof is available. The meaning of separation from the purity now falls to be considered. Internal evidence is insufcient to establish its meaning, but we shall nd support in the Community Rule (DSD). wehuvdal min hataharah means literally “and he shall be separated from the purity”. The “separation” referred to may mean the decision to separate, rather than the physical separation which no doubt results. Wieder has observed that the verb in CD 5:6–7 has the technical sense “to give a halakhic decision in matters of purity and impurity and holy and profane”, and suggests that this restrictive import derives from Lev. 10:10.15 However this may be, every occurrence of the verb in CD, apart from that in our passage, is plainly in the context of ritual cleanliness of one kind or another.16 The type of purity from which the offender is to be separated is not indicated by CD, which is not concerned to formulate rules governing taharah. But such rules are present in DSD. Sometimes, taharah appears to refer to a (psychic) state of ideal purity, as in DSD 4:5. More commonly, it refers to one of the privileges of full members of the sect,17 being mentioned along with communal property rights and privileges of drink (mashkeh) in the contexts both of initiation (6:16–20,22) and relegation (7:19–20, 24–5). Vermes takes it to mean “pure Meal”, and

14 The possibility rejected in Mekhilta ad Exod. 23:7 has two testes singulares (infra, 69f.), but, against this, Paul’s adaptation has three (infra, 79–83). None of the European systems which allow combination of testes singulares require more than are required if the witnesses were contestes, though the number of witnesses is often regarded as affecting the weight of the evidence. 15 Wieder 1962:161f., citing also CD 6:17–18. His terminological connection with Anan’s Book of Precepts need not here concern us. 16 CD 5:7, 6:14 (from the apposition), 6:17, 7:3–4, 12:19. 17 It is not synonymous with full membership, as Segal appears to have thought. See Haberman 1959:194.

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Haberman has suggested Neh. 12:45 as a possible Biblical basis for this usage.18 On internal evidence alone, this appears to be the best view of the matter, and it derives some support from the rabbinic xokhel ˜ulin betaharah, adduced by Rabin.19 In DSD the full phrase “separation from the purity” occurs four times (6:25, 7:3, 16, 8:24), on each occasion as a sanction for an offence. From DSD 7:15–17 it is clear that such separation falls short of full expulsion from the community. DSD 6:25 adds that the offender wene{enshu xet reviy{it la˜mo. From all this, it appears that the likeliest meaning of the sanction in section B of our passage is reduction to the novitiate, involving exclusion from the communal meal, which was eaten in a state of ritual purity.20 ynç wlbqy ˆwhh l[w C hrhfh lydbhl dja l[w D ynman yd[ C D

22 23

But for property (cases) they shall accept two reliable witnesses And (on the word of ) one (they may) separate from the purity.

Out of context, these provisions would be clear enough: two witnesses (being contestes) are sufcient in property cases, but a single witness sufces for separation. The different formulations in B and D may possibly suggest that the sanction is mandatory in B but only discretionary in D. But we are not told that the witnesses are contestes, and in the context of A and B the natural implication is that testes singulares are still in contemplation. Indeed, one might argue that if such a procedure were admissible even in capital offences, one should certainly expect it in property offences. Moreover, if the interpretation of A and B here proposed is correct, the formulation in respect of capital cases contains no statement at all of the basic rule of sufciency. We are told only that three testes singulares render the case complete, but where there are only two, the sanction is temporary exclusion from the pure meal. Legal drafting encompassing subsidiary to the exclusion of basic rules (which are so well known that they need no statement) is not uncommon in the early history of Jewish law, or, indeed, in other legal systems. The formulation of A and B is not, therefore, surprising, and we are entitled to conclude that C was intended as the equivalent of A, rather than as the statement of a self-understood basic rule. It is

18 19 20

Loc. cit. Rabin 1954:96 (Addenda), citing B.M. 87a; idem, 1957:8. Cf. Rabin 1957:7f.

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beyond dispute that D is the equivalent of B. Just as the effect of less than sufcient evidence in capital cases is removal from the taharah, so does that same sanction apply where less than sufcient evidence is available in a property case. The numerical sequence in A/B is X, X–1, and that is the sequence also in C/D. Thus, for all the succinctness of C and D, they follow the same pattern as A and B. The differences between A/B and C/D are two. The former is more fully expressed than the latter. But that is not surprising. Repetition in C/D of what may readily be understood from A/B—though not unknown in ancient legal texts—would be superuous. More important is the apparent difference in the required number of witnesses, three in capital, two in property cases. But there is a ready explanation for such a discrepancy. CD 9:16–23 is based upon an exegesis of the phrase “two or three witnesses” in Deut. 17:6 and 19:15.21 Indeed, we shall see that Paul, in adapting the unusual procedure of our text to his purpose, emphasises his third visitation, and cites Deut. 19:15 as his proof-text.22 “Two or three witnesses” presented commentators with two thorny problems, as it was bound to do. It was not open to the Rabbis to take the view that the formula represents a particular manifestation of a general developmental tendency in the history of legal drafting.23 To them, the text contained at least two superuities: the inclusion of “or three” when a mere “two” would perfectly adequately have served to convey the meaning “two or more”; and the unnecessary repetition of the passage in two chapters of Deuteronomy (to say nothing of Num. 35:30). Nor was the problem only exegetical. Rabbinic law, as every legal system which has adopted the Biblical requirement of corroboration, had to decide how to avoid the practical difculties inherent in its literal application. The rabbinic answer to this second, practical problem will be seen presently. The details of the solution to the exegetical problem need not here concern us.24 Sufce it to say that rabbinic exegesis consistently adhered to the view that two witnesses were sufcient in both capital

21 Cf., already, Segal 1911:135f. (hesitatingly); Rabin 1954:48; Carmignac et al. 1963:189 n. 21. 22 2 Cor. 13:1–4, discussed infra, 79–83. 23 Jackson 1975:153–71. 24 See, e.g., M. Makk. 1:7, Sifre ad loc.

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and non-capital cases.25 But that was clearly not the only possible exegesis. CD represents another. Three was the minimum for capital, two for property offences. It is possible that another feature of the passage may also have been arrived at by exegetical means. In B we are told that separation from the pure meal is the sanction where only two witnesses attest a capital matter. We are not told whether that sanction is applicable where a single witness attests a capital matter. The emphasis in wexim shenayim hem suggests that it was not, and the requirement that each witness report on the very day he witnessed the offence is an otherwise superuous safeguard against abuse. But separation from the pure meal was available where only a single witness testied to a property charge. Why the apparent difference? The reason may possibly lie in the fact that of the three Biblical texts which explicitly exclude the testimony of a single witness two are formulated with only capital cases in mind (Num. 35:30; Deut. 17:6).26 I do not, of course, insist on this last point. It could just as easily be argued that because two of the three Biblical texts deal with capital cases alone, the third, Deut. 19:15, is to be interpreted in the light of the other two, so that corroboration itself was required only in capital cases. The terminology of Deut. 19:15 is not such as to cover property offences of necessity. But on the major issue, that of the derivation of A from the Biblical “three”, there is support from 2 Cor. 13:1. Moreover, the biblicizing language of CD 9:16–23 (as of much of the document) is easily apparent.27 25 Pace Rabin 1957:111. The meaning of bifne sheloshah in M. Sanh. 8:4 appears to be that the stubborn and rebellious son is to be warned (and, as elsewhere, is expected to state his deance of the warning) in the presence of three judges (cf. Goldin 1952:173; Albeck 1959:iv.197. See also Danby’s translation) who thereupon impose agellation. This represents the rabbinic interpretation of the Biblical weyisru oto (Deut. 21:18), as may be seen from other sources quoted by Epstein 1949:377. The rabbis thus restricted the parental powers of correction. Flagellation could only be imposed by a court of three: M. Sanh. 1:2. Rabin’s view is justied only in the sense that the offence punished by agellation is established by the son’s deance of the warning, given in the face of the court. The three judges witness this special hatra’ah. This may account for the use of bifne sheloshah, instead of the more usual bisheloshah. M. Sanh. 3:2, also cited by Rabin, is a case where a litigant offers to accept the evidence of three herdsmen—three because herdsmen are, in some sources, regarded as incompetent witnesses. The text is no evidence of a general rule requiring three witnesses, or even admitting three herdsmen. 26 Cf. Rabin 1954:48. 27 Yim{al is too common a verb to require detailed citation. But, for the property context, see Lev. 5:21. The construction weraxah rey{ehu wehu e˜ad may be loosely based

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We may conclude our analysis of the sectarian evidence law by paraphrasing it in terms more familiar to European lawyers: A. Where three testes singulares successively depose to different commissions of the same capital offence by the accused, each deposition being recorded in the personal handwriting of the magistrate [on the day of the alleged offence, B], the accused may be convicted [of that capital offence]. B. But if there are only two credible testes singulares, all the other requirements of A being fullled, the accused may be reduced to the novitiate. C. Two credible testes singulares may sufce to prove a property offence. D. But a single witness to a property offence may sufce to reduce the accused to the novitiate. The mainstream of Jewish law took a very different line, rejecting testes singulares and preferring a more crude solution to the practical difculties inherent in the corroboration rule. 2. A Rabbinic Rejection of Testes Singulares The relevance to our problem of one rabbinic text, overlooked in the recent discussion, has been noted by Derrett.28 Mekhilta ad Exodus 23:7 reads:29 Suppose one witness testies that a certain person worships the sun and another witness testies that he worships the moon. I might understand that these two witnesses might be joined together and that person be declared guilty. But it says (Exodus 23:7): “And the innocent and righteous slay thou not”.

Idolatry is a capital offence. The nature of the allegations presupposes that the alleged offences were committed on separate occasions. But

on Lev. 5:1 weshamxah kol alah wehu eyd. On davar see Jackson 1972a:241f., and texts and literature there cited; on nexemanim see Rabin 1954:48; Neh. 12:45 has already been cited as a possible source of taharah in its present meaning. Rabin, loc. cit., remarks that shalem mishpato is a biblicizing adaptation of MH nigmar diyno. Could it be that CD’s avoidance of the latter is because of its origin in Babylonian legal terminology? 28 Derrett 1970:161. 29 Lauterbach’s translation, at iii. 169–70. Cf. Maimonides, Hilkhot Sanhedrin 20:1.

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though they involve instances of the same capital offence, the testimony cannot be combined.30 We are not told what the law would be if witness X testied that the accused worshipped the sun on Tuesday, and witness Y that he worshipped the sun on Friday, but there is nothing in the sources to suggest that this greater similarity would make any legal difference. The fact that the proposition that the testimony might be combined was put, and put in the shome{a xani form, might be taken to indicate that a once-held view is here adduced for repeal. It might, indeed, be thought that the evidence of CD (A) and that of shome{a xani should be combined to show a Second Commonwealth practice. But tempting as this may seem, it involves substantial methodological difculties, and the safest course is to leave the matter unresolved. 3. Some Rabbinic Quasi-Parallels Neusner has rightly cast a critical eye at the parallels to A suggested by Ginzberg.31 Rather, he approves Levine’s suggested analogy of the warning required to make an animal mu{ad.32 The rabbinic warning to curb one’s animal’s vicious propensities is applied in CD to the accused’s own evil impulse. But this parallel, too, requires closer inspection. Rabbinic law itself came to apply the principle of mu{ad to man’s own wrongful acts. But in so doing, it incorporated a radical alteration in the conception of mu{ad, one which allowed (indeed, required) the warning to be deemed to have taken place. The principle xadam mu{ad le{olam (M. B.K. 2:6) is a legal ction made necessary by the need to place direct damage committed by man within a single conceptual framework of tort law. Where, on the other hand, actual warnings remained necessary, rabbinic law required that they be given in court on the basis of the testimony of two witnesses.33 Indeed, Falk goes so far as to say that such a warning “means a previous conviction”,34 and such a previous conviction had

30 Similarly, in Mekhilta deRabbi Shim{on ad Exod. 23:7, where there is a refusal to combine the evidence of one witness who testies to a breach of the Sabbath by gathering gs with one who testies to gathering grapes. 31 1973:202–04. On the uniqueness of A, cf. Segal 1911:136. 32 Levine 1973:196; Neusner 1973:204. 33 T. B.K. 2:2, B.K. 24a. 34 Falk 1972:I.120.

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to be based on sufcient evidence. Of course, it may well be that this rabbinic interpretation does not represent the original signicance of wehu{ad biv{alaw (Exod. 21:29), and that at one point in the Biblical development an informal warning to the owner sufced.35 Nor is it likely that the rabbinic requirement of three warnings before conviction as mu{ad 36 (not merely two, as in CD) represents the original rule. Such considerations take us well beyond the problem of rabbinic parallels. But they do point to the possibility that CD took a Biblical institution as the model from which to construct a solution to the practical problems of the corroboration rule.37 As far as rabbinic parallels to C are concerned, two relaxations of the normal rules of evidence deserve consideration. The same R. Na˜man who was prepared to accept disjoined testimony in property cases38 is recorded elsewhere as having gone out of his way to penalize a persistent property offender.39 Here, too, there is no evidence that R. Na˜man was dealing with an offender of bad repute but with no previous, duly attested convictions. But one has one’s suspicions. We know all too well from the contemporary situation that the professional criminal is the most difcult to convict. Mishnaic law does take account of the problem of the repeatedly convicted persistent offender.40 The fact that R. Na˜man chose an indirect manner of proceeding indicates the unavailability of that mishnaic process. But whether this was the result of the offender’s previously clean record cannot be known. It is not the only possibility. R. Na˜man’s attitude to the persistent offender thus constitutes, at best, a possible rabbinic parallel to CD’s special procedure. And it is to be noted that the institutions differ in that the sequence of offences in CD results, at the most, in the iniction of the maximum legal punishment, whereas the purpose of R. Na˜man appears to have been to exceed the recognised maximum. More signicant is a relaxation of the law of evidence where a debt is in dispute. Suppose a creditor produces two witnesses of whom the rst testies that the debt was 200 zuz, the second 100. Does the evidence

35

On Exod. 21:29, 36; LE 54, and LH 251, see Jackson 1975:146f. M. B.K. 2:4, B.K. 24a, Mekhilta ad Exod. 21:29. See also S. Albeck 1965:132f. 37 For another example of CD’s closer relation to Biblical than to rabbinic law, see Jackson 1972a:221, on CD 9:10–12. 38 Makk. 6b; Neusner 1973:203. 39 B.K. 96b; Jackson 1972:202. 40 M. Sanh. 9:5(a), on which see infra, 73. 36

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exhibit complete diversitas, or are the witnesses to be taken as in agreement to the extent of 100? According to R. Shimon b. Eleazer, the Shammaites took the former view, the Hillelites the latter.41 This is but one of a collection of legal problems which reect the philosophical question whether the greater is distinct from or includes the lesser. There is also a rabbinic quasi-parallel to D. Mishnah Baba Metsia 1:1–2 requires that disputed property be divided in some cases where there is no evidence on which to decide between two claimants, and the Babylonian Talmud has a maxim “money which is in doubt, is to be divided”.42 Yaron has observed that this is one possible principle underlying LE 53 and Exod. 21:35 (upon which the rabbinic shor tam was based).43 But as far as rabbinic law is concerned these cases are distinguishable. The liability of the owner of shor tam was limited, so that in many cases the loss would be divided between owner and victim. But this did not apply in the absence of witnesses to the incident, and if witnesses were available, the owner’s liability was still limited, as long as the animal was tam. The property disputes in which division was possible were ones in which there was no allegation of an offence. Where an offence was alleged, it had to be proved by two witnesses; if they were lacking, or if there was only one, that offence was not proved,44 and no sanction was available against the accused. In some offences, the charge might itself lead to an oath of denial (e.g. M. Shebu. 5:2), but it seems to have been open to the accused to refuse such an oath, and in any event the outcome was either full conviction or full acquittal. This all-or-nothing approach was consistently applied in property offences, so that there is no real rabbinic parallel to D.45 Nevertheless, shor tam, rabbinic property disputes, and D do have one common feature. They are all exceptions to some application of the “all-or-nothing” approach which characterizes the growth of integration within legal systems. Thus, modern tort laws tend to the view

41 Sanh. 31a, B.K. 41b, developing a set of traditions concerning Nazirites. See Neusner 1971:ii.217–8, 223. 42 B.K. 35b, B.M. 2b. Applications of the principle survived in canon law. See the early thirteenth century Summa de ordine iudiciario of Magister Damasus, LXIII. 43 Yaron 1966:398, repr. in Cohn 1971a:52. 44 M. B.K. 7:2–4; Jackson, 1972:194–5, 228–30. 45 The sufciency of a single witness was, however, recognised in certain situations concerning personal status. See Hull. 10b, Bekh. 41a, Ker. 12a; v. Vliet 1958:61. But here the single witness was fully sufcient for the purposes for which the evidence was required. There was no partial consequence.

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that a tortfeasor is either liable to compensate in full or not liable to compensate at all. On principle, there is no distinction in the measure of damages dependent upon whether liability is based upon “strict” or “negligence” principles. In rabbinic law, on the other hand, the limitation of the owner’s liability for the damage committed by his shor tam corresponds to the fact that such liability is (despite some modern talmudic commentators) “strict”; where his liability is based on negligence, as in mu{ad, full damages are payable. So too, modern law deals with property disputes on an “all-or-nothing” basis. Ownership is either proved, or it is not proved. If the latter, the claimant will get nothing. Rabbinic law, on the other hand, recognises some situations in which the difculties of proof are so great that a division is more equitable than the total denial of a remedy. Again, modern law accepts in theory only two possible outcomes to a criminal trial: the accused is found either guilty or innocent. It is not open to the court to nd him “partially proven guilty” and therefore subject to a partial sanction.46 CD, on the other hand, does here recognise a partial sanction consequent upon partial proof. 4. A Real Rabbinic Parallel to B Although rabbinic law contains no trace of partial sanctions consequent upon partial proof in a property offence, there is a clear application of such a principle in the law of murder. The parallel to B occurs in Mishnah Sanhedrin 9:5(b):47 A wsrkç d[ ˆyrw[ç wtwa ˆylykamw hpkl wtwa ysynkm ˆyd tyb hnçw hqlç ym

t[qbtm B ymw rx jl twa ˆylykamw hpkl wtwa ˆysynkm yd[b alç çpn grwhh

jl (a) (As for) one who was scourged and then was scourged again, the court takes him to a prison-cell and feeds him with barley until his stomach bursts.

46

Even in Scotland, where the requirement of corroboration has made a third alternative desirable, the possible consequences of the “not proven” verdict lie entirely outside the criminal law. 47 Cf. Jackson 1972a:229 n. 9. Rabin 1954:48 adduced the text as a parallel, but mistakenly cited it as M. Sanh. 10:5. He also regarded it as referring (only) to the absence of the “ritual” requirements of evidence. But see infra 74–76.

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What, precisely, are the circumstances, and what the sanction in M. Sanh. 9:5(b)? le˜em tsar umayim la˜ats, a quotation of Isaiah 30:20, occurs only in this passage and that of the Tosefta which attempts to interpret it. The rabbis were plainly puzzled. In the absence of further indication, they refused to conclude that the two differently expressed sanctions had two different meanings, and conated le˜em tsar umayim la˜ats with the clearer formulation of the preceding part of the mishnah. The question of the relationship between the two sanctions was posed in the Gemara ad loc., and the answer given by R. Shesheth: R. Shesheth answered: In both cases he is fed with ‘bread of adversity and water of afiction’ for his intestines to shrink, and then he is fed with barley bread until his stomach bursts.48

Together with this reinterpretation of the sanction of M. Sanh. 9:5(b), and, one may reasonably guess, as a result of it, the words shelo be{edim in the protasis were also given a non-literal meaning. For if, despite evidentiary insufciency, a non-traditional capital sanction was to be imposed, the degree of evidentiary insufciency must be as small as possible. The rabbis hesitated to apply their view of the sanction in (b) to the situation where the murder really was committed “without witnesses”, as this would plainly contravene Num. 35:30, Deut. 17:6 and 19:15. The view was therefore adopted that two witnesses were present, but that there was a formal49 defect in their testimony. The Gemara (Sanh. 81b) opens its commentary on our Mishnah by attacking this very point: How do we know [that he committed murder]? Rab said: On disjoined evidence. Samuel said: Without a warning. R. Æisda said in the name of R. Abimi: By [the testimony] of witnesses who were disproved in the bediy—ot but not in the ˜akyrot.50

In the Tosefta (Sanh. 12:7–8) Abba Shaul, at least, does not expressly conate the sanctions, but the interpretation of shelo be{edim is a rather extreme version of the view attributed to Samuel in the Gemara:

48 49 50

Sanh. 81b. Cf. Maimonides, Hilkhot Rotsea˜ 4:8. Rabin’s “ritual” defect, supra n. 47. On these, see Jackson 1972a:231.

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If a man about to commit a crime be warned and he keep silent, or if, when he is warned, he shake his head,51 they are to warn him a rst time and a second time, and the third time to take him to prison. Abba Shaul says: he is warned a third time; and on the fourth is taken to prison and fed with bread of anguish and water of affliction. In the same way, they who have been found guilty and condemned to scourging, and have repeated the offence and been scourged a second time, on the third occasion they are to be taken to prison. Abba Shaul says: They are scourged a third time, and on the fourth occasion they are taken to prison and fed with barley till their belly bursts.52

Jewish interpretation has continued along this early-established path.53 Indeed, in this century David Hoffmann wrote:54 Die zwei Sätze unserer Mischna scheinen demnach zwei Versionen ein und derselben Gesetzesbestimmung zu sein, wonach mancher Verbrecher, der die Todesstrafe verdient, aber doch nach der Vorschrift des Gesetzes nicht hingerichtet werden kann, eine Kerkerstrafe erleidet, die seinen frühen Tod herbeiführt. Was in der einen Version fehlt, das ndet sich in der andern.

But the historian will take a different view. Two sanctions are not stated differently in the same Mishnah if they bear the same meaning. Shelo be{edim means simply “without [the presence of ] witnesses”. Even if one stretched it to include the circumstances envisaged by the Tosefta and the Amoraim, the literal meaning would not thereby be excluded. Moreover, it is only by reference to two different principles that the offenders in both (a) and (b) may be said (with Hoffmann) to deserve the death penalty. In (a) the offender has (presumably on sufcient evidence) received the legally appropriate punishment for each of his several offences. He “deserves” the death penalty only on the basis of the public safety. Jewish law provides the judges with no general discretion to increase a punishment because of the offender’s previous record. Hence, the present extraordinary measure. In (b), on the other hand, the offender may be said to “deserve” the death penalty in an entirely different sense. His offence is one for which the law does provide a capital sanction. But, because of the insufciency of the evidence,

51 I.e. he fails to make the necessary verbal reply, indicating acceptance of the warning and the consequences of ignoring it. 52 Translation of Danby 1919:119. 53 See, e.g., Maimonides, ad loc. 54 1924:187 n. 48.

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that sanction cannot be imposed. Indeed, there is here no sanction which may be imposed under the general law, since the accused has been convicted of no offence. A compromise is therefore made between justice to the accused, and public safety. Of course, rabbinic interpretation is right in requiring that even this lesser punishment is not to be imposed arbitrarily, on imsy evidence. But we are not to suppose that it could be imposed only where the defect in the evidence was purely formal. There is no reason whatsoever to deny that the evidence of testes singulares, or, indeed, a single witness falls within the intention of M. Sanh. 9:5(b). Indeed, the Palestinian Talmud’s mishnah reads hahoreg et hanefashot (b, nefesh) shelo be{edim,55 “the killer of people (pl.) without witnesses”, which may include the case where there is only one witness to each of a series of homicides.56 In substance, therefore, M. Sanh. 9:5(b) is a close parallel to section B of our CD text. In both, a non-capital saction is imposed in a capital matter where there is a real deciency of evidence. In CD three witnesses are required to impose the death penalty, but two sufce for separation from the pure meal. In mishnaic law, two are required for the death penalty, but one sufces for imprisonment and le˜em tsar umayim la˜ats. Beyond this, it would be unsafe to go. But it is interesting to examine further the similarity of the two sanctions. Separation from the taharah meant, as we have seen, exclusion from the communal meal, eaten in a state of ritual purity. We are not told whether this involved a reduction in rations, as well as exclusion from the table of full fellows. Such evidence as there is suggests that it did not. In DSD the sanction occurs four times, and in one deprivation of a quarter of the offender’s rations (la˜mo) is explicitly added (6:25). This may imply that ordinarily no such deprivation was involved. In Josephus’ account of Essene law exclusion did have dire implications for survival, but Josephus is referring to full expulsion on sufcient evidence:57 Those who are convicted of serious crimes they expel from the order; and the ejected individual often comes to a most miserable end. For,

55

Schachter 1959:267, and see Lieberman 1970–71:10–13. It may be noted that in European discussions of testes singulares from the twelfth century (for which see infra, 95–97) homicide was the classical example of a factum non iterable, for proof of which testes singulares were not to be conjoined. 57 Bell. Jud. II, viii, 8, 143–44 (Thackeray’s translation). In the very next passage Josephus stresses the justice and care with which Essene trials were conducted. 56

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being bound by their oaths and usages, he is not at liberty to partake of other men’s food, and so falls to eating grass and wastes away and dies of starvation. This has led them in compassion to receive many back in the last stage of exhaustion, deeming that torments which have brought them to the verge of death are a sufcient penalty for their misdoings.

M. Sanh. 9:5(b) thus shares with CD the principle that a lesser sanction may be imposed where the evidence is less than sufcient. It shares with Essene law, as related by Josephus, the punishment of bringing the offender near to death by, in effect, depriving him of normal rations. It differs from Essene law in the circumstances in which such a sanction may be imposed. The extent of the difference between the sanctions in CD and the Mishnah is difcult to gauge. Separation from the pure meal was probably temporary. We have no indication as to the duration of the Mishnaic imprisonment. Separation appears not to have involved a reduction of rations to the bare minimum for survival. But the concept of a table-fellowship was not restricted to the Qumranians. It existed also among the Pharisees.58 It is possible to view the Mishnaic punishment in terms of separation from such a table-fellowhip. But it is not necessary to do so. We have here a combination of factors which might be regarded as justifying a Second Commonwealth dating of the mishnaic rule. M. Sanh. 9:5(b) stands in conict with its immediate post-mishnaic interpretation. It has elements in common with both Qumranian and Essene law, and perhaps with an institution of Pharisaism. It represents a compromise between the requirements of Biblical law and the practical maintenance of law and order—a compromise, one might think, referable to an independent polity. But practical considerations were not the monopoly of the Second Commonwealth. The Tannaim were also exercised by them, if in a different direction, and a measure such as M. Sanh. 9:5(b) is explicable in the circumstances of their time. The Rabbis were concerned to correct Jewish offenders within the community, rather than hand them over to the Romans. In order to do so, they were bound to follow a policy of moderation—one which would leave all the parties to any dispute moderately satised, or at least not sufciently dissatised to resort to the alien power. This, in my view, explains the lengths to which they went to avoid imposition

58 Rabin 1957:12ff.; Neusner 1971:iii.305–6. See esp. T. Dem. 2:2. Cf. Josephus, Bell. Jud. II. 139, of the Essenes.

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of the death penalty (as well as other anomalies of tannaitic criminal law) far better than supposedly rigid jurisdictional powers.59 Where murder could be attested by a single witness, the family of the victim had a powerful claim to see its desire for vengeance satised. If the Rabbis did nothing, there would be a great temptation to resort to the Romans (who had not, yet, fully accepted the rule unus testis nullus testis).60 A measure such as M. Sanh. 9:5(b), whereby a non-capital, but in some circumstances potentially capital, punishment was applied, may well have been designed to meet such a situation. The rabbinic evidence provides support for the view that M. Sanh. 9:5(b) represents a live tannaitic institution. Its inclusion in the Mishnah is (despite some contemporary views) prima facie evidence of that. But support comes from the distribution and literary features of the alternative solution in this case. Where an offence could be attested by a single witness, the punishment came to be regarded as left to Heaven. The sources have been examined by Neusner. With two apparent exceptions, Mekhilta ad Exod. 23:7 and Tosefta Sanh. 8:3, they come from sources clearly later than our Mishnah. But the Mekhilta narrative of Judah Ben Tabbai is regarded by Neusner as dependent upon an earlier version, also found in the Mekhilta, and in that earlier version the insufciency of a single witness is not the issue, nor is a heavenly punishment mentioned.61 Tosefta Sanh. 8:3 relates the same story of Shimon Ben Sheta˜. The insufciency of a single witness is here plainly the issue, and heavenly punishment is said to have been imposed. On literary grounds this version is regarded by Neusner as dependent upon Mekhilta.62 On grounds of substance, too, it appears to be later than M. Sanh. 9:5(b). It constitutes the converse to the interpretation of M. Sanh. 9:5(b) which we have already examined.63 Tosefta Sanh. 12:7 and the Gemara interpret shelo be{edim as referring only to a formal defect in the evidence. By implication, the sanction of M. Sanh. 9:5(b) was not regarded as applicable where there was a single witness. Tosefta Sanh. 8:3 tells us what result was envisaged in such a case. It was punishment at the hands of heaven.

59 On jurisdiction over property offences, see Jackson 1972a:251–60; on capital jurisdiction, Daube 1957a:110; Schürer 1973:i.526. 60 C. 4.20.9. 61 1973:205–07. 62 Ibid., 210–12. 63 Supra, 74f.

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There is one independent tradition which applies heavenly punishment to murder shelo be{edim. Both Onkelos and PT go out of their way to add it to their translations of Gen. 9:5–6. The translators were faced with a Biblical text which rst stated that “I” (God) will seek vengeance from beast or man for the life of man, and then went on to add shofekh dam haxadam baxadam damo yishafekh. They understood baxadam to mean “by man”,64 and so felt bound to explain the apparent contradition with the preceding rst person formulation. They did so by assigning to heavenly punishment only those cases in which the evidence necessary in human courts was lacking. The interpretation is clearly the result of exegetical problems, and its halakhic signicance is small. One further, but important, indication of the late date or low standing of the application of heavenly punishment in cases of evidentiary insufciency deserves mention. Catalogues of the situations in which punishment was left to dine shamayim are to be found in T. B.K. 6:16–17, T. Shebu. 3:1–3, B.K. 55b–56a, and Y. B.K. 6:1. In none of them does insufciency of evidence occur. There is, therefore, every likelihood that M. Sanh. 9:5(b) represents an institution of the tannaitic period. That elements within it are to be found in Second Commonwealth sources does not prove that its origin is of that period, and, without more, it would be unsafe to assume that it does. The sources which substitute heavenly punishment may, on the other hand, safely be assigned to a post-mishnaic, albeit early postmishnaic, date. Perhaps they emanate from Babylonia, where the same practical considerations as those which gave rise to M. Sanh. 9:5(b) did not apply. 5. A New Testament Application of A 2 Cor. 13:1–4 presents few difculties of translation, but its meaning has long been a matter of debate. NEB reads: (1) This will be my third visit to you; and all facts must be established by the evidence of two or three witnesses. (2) To those who have sinned in the past, and to everyone else, I repeat the warning I gave before; I gave it in person on my second visit, and I give it now in absence. It is that when I come this time, I will show no leniency.

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On the original meaning see Jackson 1975:46.

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chapter four (3) Then you will have the proof you seek of the Christ who speaks through me, the Christ who, far from being weak with you, makes his power felt among you. (4) True, he died on the cross in weakness, but he lives by the power of God; and we who share in his weakness shall by the power of God live with him in your service.

Plummer (1915:371–73) accepts, on the plain meaning of the text, that Paul does refer to a third visit to Corinth65 and rejects, rightly, the view that proof in actual legal or disciplinary proceedings is under discussion.66 He then concludes: To avoid these difculties, Chrysostom and Theodoret, with Calvin and some moderns, suggest that the visits to Corinth, two paid and one about to be paid, are the three witnesses. On the previous occasions he has found much that he was obliged to condemn, and he fears that during the third visit he may nd a great deal of the same kind. That will amount to threefold testimony against them. True that it is the testimony of only one witness, but it is not mere repetition of the same evidence, for he bears witness to three different groups of facts. This is not a very attractive interpretation, but St Paul’s manner of using Scripture is sometimes so free that we can hardly reject this interpretation as unworthy of him.67 Nevertheless, if we accept it, we need not suppose with Bousset that St Paul makes the suggestion that three visits are equivalent to three witnesses ‘humorously’. The Apostle is speaking with the utmost seriousness and gravity. Hence the impressive asyndeton of the opening sentences. But with regard to the rival interpretations of the Apostle’s meaning we must be content to remain in doubt.

The error in this suggestion lies not in any unacceptable exegesis of the Deuteronomic text—for Plummer’s view, wrong though it be, reproduces virtually an identical interpretation to that of CD 9:16–20—but rather in its conception of what is to be proved. In fact, the text is clear enough on this point. The third visit is to prove to the Corinthian’s the genuine-

65 Cf. 2 Cor. 12:14. On the geography and chronology of Paul’s travels, see Kümmel 1966:207ff. 66 A view still held by Hughes 1962:474f. For a Pauline text which may possibly represent a more juristic application of CD 9:16–20, see Titus 3:10–11. 67 Cf. Strachan 1933:38: “The passage in Deuteronomy is characteristic of other citations from the Old Testament which Paul makes. It is due merely to an association of ideas in Paul’s mind, and here is intentionally whimsical”; Héring 1958:201: “Ou bien les trois visites équivalent-elles à trois témoignages? A première vue cette assimilation peut paraître bizarre, mais l’apôtre peut avoir interprété ce commandment d’une manière assez large et presque allégorique, à la manière des rabbins.”!! Cf. Strathmann 1967:iv.490.

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ness of Paul’s mission,68 and, particularly, the fact that “Christ speaks in me” (    ). It is this thought which runs through the whole paragraph, and gives it coherence. To paraphrase: (1) a third visit is good proof—Deut. 19:15;69 (2) I have said before, and I repeat, that the third visit will be the one in which I impose strong measures; (3) these measures will prove that Christ speaks in me, since Christ (too?) exercises his strength on you; (4) You need not argue that Christ in fact died on the cross (in weakness).70 In fact, he was resurrected by God. So too shall we, though weak at rst, become strong, as a result of the same divine power, in our ministry to you. That Paul’s earlier visit had not been well received is clear from the immediately preceding chapter, which reects both anxiety at the likely reception on the third visit, and concern to establish Paul’s status as not inferior to that of the apostles (2 Cor. 12:11). But the clearest indication is in chapter 13 itself, “since you seek proof of the Christ who speaks through me” (         ). Why Christian commentators should have been so reluctant to give this statement its natural meaning is, perhaps, a question to be answered principally in the context of later Christian theology. The only textual argument for the view that the visits are evidence of the offences alleged against the Corinthians71 lies in the context from which the Deuteronomic quotation is taken. But even this is hardly convincing. The NT text reads    !  " #$  % &, following LXX Deut. 19:15    !,    " ! '  % &'. &' is a translation of the Hebrew davar, which does sometimes have a technical usage in legal contexts. Hence, RSV translate the quotation in 2 Cor. 13:1 “Any charge must be sustained . . .” But the Hebrew davar is found far more frequently in non-legal contexts, meaning sometimes “a word, a saying”, at other times the thing spoken of, “a matter”. The Greek &', used by the LXX as the normal translation of davar, has this same range,

68 Cf. Strachan 1933:38. On the proof of spiritual missions, see Dauvillier 1970:590f., on Gal. 2:1–2. 69 Cf. Lietzmann 1969:160. 70 For the view that the Corinthians had recently been inuenced by Judaeo-Christians, see Menzies 1912:102. 71 Lietzmann 1969:160; v. Vliet 1958:96, followed by Barrett 1973:333. Yet at 334–37 Barrett stresses the theme of Paul’s proof of his apostolic mission, doubted by the Corinthians, in his comments on vv. 3–4.

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except that the technical legal connotation is less prominent.72 The non-legal context is thus hardly inconsistent with the terminology of the quotation, and, indeed, the theological adaptation of ( in the New Testament is well recognised. We may observe also that whereas the MT speaks only of davar, the LXX and NT have % &'. By this third visit, Paul seeks to prove his status to the Corinthians, who plainly have their doubts. His argument implies that he did not expect them to accept only two visits as sufcient evidence, despite the opportunity provided by the Deuteronomic formulation. It shares with CD 9:16–22 (and other sources) the view that three represents minimum sufciency in some cases. It differs from CD in applying this rule to a situation in which there was more than one witness to each of the three events. But, by Paul’s own account, the evidence of the preceding two visits was not regarded by the Corinthians as sufcient. The most important difference between 2 Cor. 13:1–4 and CD 9:16– 20 at rst sight appears to lie in their respective areas of application. CD envisages devar mawet; 2 Cor. is concerned to establish a theological proposition. The link is to be found in the extended usages of the Greek term ( (LXX Deut. 19:15, quoted in 2 Cor. 13:1). Already in classical sources this was extended to cover a witness to truth or to opinion, including theological propositions. One application is to be found in the {eduyot of the Jewish sources, in which named rabbis testify to the validity of received traditions.73 In the New Testament, ( is also applied to events which testify to the truth of theological propositions.74 Here, then, three separate events are to be regarded as sufcient “testimonies”, just as were testes singulares to three separate offences in CD. The idea that a prophetic status could be proved by three visitations is not conned to Paul. Applied to the resurrection of Jesus, it appears

72

See Bauer 1957, ad loc. Cf. Daube 1973a:92. 74 Cf. John. 5:36: “But the testimony which I have is greater than that of John; for the works which the Father has granted me to accomplish, these very works which I am doing, bear me witness that the Father has sent me.” On the classical and New Testament sources, see Strathmann 1967:iv.477ff. Indeed, Nineham 1960:253 comments on the special association of  in Luke—Acts with those who have seen the risen Jesus. In patristics, Biblical texts are used as “witnesses” to theological propositions, as, e.g., in Chrysostomos, Adv. Jud. I (Migne, PG 48, 844). See also Glossa Ordinaria ad Deut. 19:15 (Migne, PL 113, 472): Et contra impios vel haereticos, cum testimoniis scripturarum indigemus, duos testes, id est, Vetus et Novum Testamentum adhibemus, vel tres, id est, Evangelium, prophetas, apostolum, ut sic stat verbum. 73

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in the primitive form of the tradition of the witness list transmitted by Paul in 1 Cor. 13:5–8, and also forms the conclusion to three of the gospels.75 In 1 Cor. 13:5–8 Paul lists six appearances of Jesus: to Cephas, to the twelve, to the ve hundred brethren, to James, to all the apostles, and nally to himself. There is, however, general agreement that the tradition here transmitted is not entirely original, and there is good reason in the text to restrict the primitive form to the rst three appearances.76 Anderson has observed that the list (in both its pristine and its Pauline forms) is restricted to legally competent witnesses.77 This is certainly correct: all the witnesses are male, and all are, by implication, eye-witnesses. But it must be noted that, here as elsewhere, the rst-mentioned appearance would not have been regarded as legally sufcient—in this case because it was to Cephas, a single witness. It thus seems that in the earliest available form of the tradition relating to proof of the resurrection, the insufcient evidence as to the rst appearance was supplemented by evidence of two further appearances; just as in CD, the insufcient evidence of one witness to a capital offence was supplemented by evidence of two further capital offences.78 In Matthew,79 the risen Jesus appears rst to Mary Magdalene and other women after they had been sent away from the tomb by an angel (28:9–10). They are told to send the disciples to Galilee, where

75 On this theme, cf. Albertz 1947:124f.; Jaeger 1965:465, citing Acts 1:22, 2:32 to show the early view of the apostles as witnesses of the resurrection; van Vliet 1958:91; Nineham 1960:253. Cf. Glossa Ordinaria ad Deut. 17:6: In titulo quoque crucis tres linguae testantur Christum esse regem Judaeorum: Hebraica, Graeca et Latina (Migne PL 113, 469). 76 See Anderson 1973:116. 77 Op. cit., 133. 78 Three elements—competency, sufciency, and weight—which modern law distinguishes, are undifferentiated in these New Testament sources. Women, as in the gospel accounts of the resurrection, are incompetent (i.e. inadmissible as witnesses); one male witness (as here), though competent, is legally insufcient (i.e. the law forbids reliance upon him: Deut. 17:6, 19:15, etc.); two or more male witnesses (though both competent and legally sufcient) may yet lack the requisite weight, i.e. they may not be believed. But whether the cause is incompetency, insufciency, or lack of weight, the result is always that proof fails. Thus, there is no real difference between the second and third witnesses in CD, who are, individually, legally insufcient, and the evidence of the second and third appearances of Jesus according to 1 Cor., which, though legally sufcient, were not taken to possess sufcient weight. 79 Matt. 18:20, “For where two or three are gathered in my name, there am I in the midst of them”, in which the “two or three” is again an allusion to Deuteronomy (cf. Matt. 18:16), is related. The presence of two or three disciples is taken to prove the presence of Jesus.

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Jesus would appear to them. The account given of the ensuing events describes two Galilean appearances, one in fullment of Jesus’ promise, the second in response to doubts (vv. 16–20)—a total, therefore, of three visits. The same pattern, but more clearly and artfully expressed, occurs in the present conclusion to Mark’s gospel. Jesus appeared rst to Mary Magdalene, who informed the disciples, “but when they were told that he was alive and that she had seen him they did not believe it” (16:9–11). Next, he appeared to two of the disciples. They informed the rest “but again no one believed them” (16:12–13). It was only when Jesus appeared a third time to the eleven disciples at table, and reproached them for their disbelief, that he was believed (16:14–18). Jesus then ascended, and took his place at the right hand of God (16:19), thereby implying that no further appearances were made, and the disciples, now convinced, set out to proclaim their belief (16:20). There could hardly be a clearer statement of the process by which Paul sought to convince the Corinthians of his mission. And the parallel to our CD text is crystal clear on one point: Jesus was not believed on the basis of the rst two visits. The evidence was not regarded as sufcient, and this despite the fact that, though the rst visit was attested by only a single, legally disqualied witness,80 the second was attested by two of the disciples themselves. The account in Luke is very much more elaborate, and differs from that in Matthew and Mark in several respects. Jesus does not appear personally to anyone but the disciples. Rather, two angel-like gures appear to Mary Magdalene, Joanna, Mary the mother of James, and the other women with them, who inform the disciples. Their account is disbelieved (24:11), but it is not a visit by Jesus that they have witnessed. On the same day, however, Jesus does appear to two disciples, who do ultimately recognise and believe (24:13–35). They hasten to tell the eleven, and, while telling them, Jesus appears a second time. They

80 Cf. Capitula selecta ex antiqua canonum collectione (8th cent.?) lib. 16, c. 3: Synodus Hibernensis: . . . Testimonium feminae non accipitur, sicut apostoli testimonium feminarum non acceperunt de resurrectione Christi (Migne PL 96, 1286). Vermes 1973:40–41 argues from manuscript and literary evidence that this originally concluded Mark’s account, and that it was later Christian tradition which added the Appendix to Mark, and the accounts of the further appearances. The theory here proposed is consistent with that view, as long as the original conclusion to Mark is regarded as preceding even the primitive form of the tradition in 1 Cor. 13:5–8. This latter proposition gains support from the conclusion of Schmittals 1971:156–285, that Paul’s proclamation of the resurrection of the dead in 1 Cor. 15 is the climax to an anti-gnostic polemic.

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are startled, and disbelieve “for joy” (  ' )% v. 41), but their disbelief is only temporary. As soon as Jesus has nished speaking they are convinced, and return to Jerusalem to offer praise in the temple (24:36–53). This tradition is clearly independent of Matthew and Mark. The evidentiary problems are played down. The disciples are convinced as soon as they have received a visit. There is no reiteration of doubt. Yet the tradition of three-fold testimony is preserved in the fact that here, alone among the Gospels, the events immediately following the visit to the tomb are witnessed by three named women (24:10). John conates the principal characteristics of these two traditions. From Matthew and Mark he takes the stress upon three visits. This is to be seen in chapter 20, in which Jesus (in addition to the two angel-like gures) appears rst to Mary (alone, as in Mark), then to the disciples that same day, and then, eight days later, again to the disciples, in reaction to the doubt expressed by Thomas. Verses 30–31 indicate that this, at one stage in the growth of the tradition, concluded the account. Chapter 21 continues, however, to relate a further visit. An attempt is made to reconcile this addition with the tradition of three, already satised in the preceding chapter. In 21:14 the story is interrupted to point out that “this was now the third time that Jesus was revealed to the disciples after he was raised from the dead”. So, indeed, was it the third time he was revealed to the disciples. The rst visit had been to Mary Magdalene alone. Whatever the reason for the supplementary account in chapter 21, there is no doubt that both chapters preserve the tradition of three visits. But in other respects, the Lukan tradition prevails. The account is elaborate, and includes the appearance of the two angel-like gures. Most important, the doubt of the disciples is played down. We are not told that they doubted the account of Mary Magdalene, but only that Thomas (who is said not to have been present with the disciples when Jesus visited them for the rst time) doubted. The tradition of doubt must be the earlier. In the face of their divergence from Jewish belief, the authors of Matthew and Mark sought to persuade by showing that the disciples, too, were as sceptical as the likely audience. But they had been convinced on the basis of evidence which, we now know, was regarded by some contemporary Jewish circles as sufcient in the context of criminal law. Later, when belief had assumed the status of an established dogma, the relating of the disciples’ doubts appeared incongruous, and the emphasis upon it was much reduced.

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It is not for me to pursue in detail the implications of this interpretation for New Testament theology. Sufce it to state the three principal conclusions. Paul and the author of the appendix to Mark were concerned to prove their claims on the basis of legal criteria. In so doing, they made no attempt to hide the doubt with which their messages were received, and they tailored their evidence accordingly. The evidence they produced was of a kind admitted in the criminal law context by one known Jewish group.81 The three testes singulares of CD became three separate witness-bearing visitations.82 Whether Paul or the author of Mark 16 had direct access to CD is, however, a question which cannot be answered. The gospel writers themselves came to be regarded by the Church as witnesses to the events they described. Yet even when they differed one from another in important particulars, they were to be believed. Torquemada, in the fteenth century, derives the following conclusion:83

81 In the case of Paul one might have expected his source to be Pharisaic. But we have no evidence of the Pharisaic attitude to testes singulares. All we have is a rabbinic source rejecting one example of the institution, supra, 69f. 82 After this study was completed, I found that my association of 2 Cor. 13:1–4 with CD 9:16–23 had been anticipated by two scholars. Delcor 1968:76 writes: “The Second Epistle to the Corinthians clearly implies that Paul himself will personally judge the serious disputes of the community on the testimony of two or three witnesses according to the prescription of Deuteronomy 19:15. Now this passage is very well illustrated by a complete section in the Damascus Document, which is formally concerned with how the statements of witnesses should be made before the mebaqqer (CD 9:16–23).” Forkman 1972:133f. states his conception of the relationship far more fully: “CD IX 16–23, with reference to Deut. 19:15 (and 17:6) gives instruction as to how reproving witnesses from different occasions can be united so that sentence can be passed. In 2 Cor. 13:1 Paul in the same way speaks about the repeated occasions on which he had reproved the Corinthians and describes these occasions as witnesses which can be united to make judgement possible. The parallels are striking. Both Paul and CD interpret Deut. 19:15 so as to make testimonies from different occasions able to be united in order to make judgement possible, even though there is only one witness from each occasion of offence. Of course the situation in 2 Cor. 13 differs from that of CD IX. With Paul it is a question of general admonitions to the community, or to a group within the community, while in CD the rule applies to the transgression of a single individual. But even if Paul does not see his admonitions as juridically necessary prerequisites for expulsion, it is—according to my mind—clear, that he refers to the rule about repetition of reprovings (cf. also Gal. 1:9) . . .” This particular conception of the factum probandum suffers, inter alia, from the resulting difculty in identifying the factum probans: Is it Paul himself (a single witness repeating his own words) or the visits? v. 1 clearly indicates the latter, and v. 3 what really is the factum probandum. Nevertheless, Forkman makes an interesting point in stressing the elements of reproof. But the status of the reproof itself depends upon establishment of Paul’s own status, and it is towards the establishment of the latter that Paul’s reiteration of the visits is directed. 83 Commentaria in Decretum Gratiani, p. II, lib. III, qu. IX, c. 16.

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. . . Nam diversitas temporis et loci non videtur vitiare testimonium. Primo evangeliste diversis temporibus testantur de crucixione Christi. Nam Marcus dicit tertia hora. Lucus vero sexta, tamen eorum testimonium valet.

We know, he says, that diversitas temporis et loci (by then a technical legal expression) does not (necessarily) vitiate the evidence of two witnesses. In other words, they may be contestes, rather than testes singulares, even though they differ as to time or place. For Mark says the crucixion occurred at the third hour, while Luke says it was at the sixth; and, despite this, their evidence (that Christ was crucied) is valid. Torquemada does not, however, intend to suggest that evidence is always valid despite diversitas temporis. He goes on to describe the crucixion as factum continuum vel durabile, a continuing fact, evidence for which, according to both legists and canonists, could be provided by witnesses to different parts of the continuing whole. From the Summa Decretorum of Runus, in the middle of the twelfth century, testes singulares had made a startling reappearance in the learned law.84 New Testament exegesis appears to have been one of the channels through which the institution of testes singulares was transmitted from CD to the mediaeval sources, whence it was to inuence both English and Scottish law.85

84

See further, ch. 5, infra. A version of this paper was presented to the Jewish History seminar at Oxford, Hilary term 1974. I am indebted to Professors Baruch Levine, Jacob Neusner and Chaim Rabin, Dr. Geza Vermes, and my Edinburgh colleagues Drs. Peter Hayman and David Mealand, for their comments on it. 85

CHAPTER FIVE

SUSANNA AND THE SINGULAR HISTORY OF SINGULAR WITNESSES Susanna had all the attributes—beauty, status, wealth. Her husband was a leader of Babylonian Jewry; their home was the focal point of the community, and it was there that the two appointed elders sat in judgment. Susanna was also devout and modest. She waited until the people departed at midday before walking in her garden. But the sight of her entering the garden at noon each day was too much for the elders; they became infatuated and obsessed with lust for her. On discovering that their afiction was common, they entered into a conspiracy. One day they observed Susanna dismiss her maids, in order to bathe in an enclosed section of the garden. Thereupon they entered the enclosure, demanded that she yield to them, and threatened that unless she did so they would testify that it was in order to meet her lover that she had sent her maids away. But Susanna remained steadfast; she chose to risk the accusation of the elders rather than commit the sin of adultery. Immediately the elders acted upon their threat. They shouted her down, summoned the household to observe the compromised state of the wife found naked and alone and claimed that they had surprised her with her lover, who had then ed. The servants were deeply shocked. The next day the elders placed their own accusation at the head of the list. They summoned Susanna as if she were a common criminal, not the mistress of the house which played host to the court. She attended, veiled in modesty and supported by the presence of her family—parents, children and all her relatives. The elders ordered her to unveil, in order to feast their eyes and compound her humiliation. Placing their hands on her head, they pronounced their accusation: they had observed her in agrante delicto with her lover; they had attempted to detain the young man, but he had been too strong for them and had escaped. In deference to their position, the assembly believed them and condemned Susanna to death.1

1

In accordance with biblical law: Deut. 22:22.

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Susanna cried out in protest—the omniscient God must know of the falsity of the charge. And as she was being led to her execution, God inspired a devout youth named Daniel to intervene on her behalf. “Fools”, he proclaimed, “You are condemning a woman of Israel without careful inquiry. Reopen the trial. The elders’ evidence is false.” The other elders recognized the special authority conferred by God upon Daniel,2 and he was admitted to the forum. Before cross-examining the accusers, he required them to be separated. Thereupon he berated the rst elder for his past sins, and asked under what tree the offence was committed. “Under a mastick tree,” the rst responded. Daniel promptly denounced him as a liar and told him to stand aside. Having similarly berated the second elder, he asked him the same question. “Under a holm tree,” came the reply. The whole assembly then turned on the two elders and put them to death in accordance with Mosaic law against malicious testimony.3 “And so an innocent life was saved that day . . . And from that day forward Daniel was a great man amongst his people.” The story was written c. 100 b.c., and is preserved in two Greek versions.4 It did not nd its way into the Hebrew Bible—for reasons which will soon appear—but was preserved by the Church in the Old Testament Apocrypha. Before turning to the legal issues presented by the tale, we may note some points of literary interest. The climax rests upon the different trees advanced by the two elders as the locus delicti. The point is reinforced by a skilful double pun. When the rst elder replies “under a mastick tree” (  ) Daniel retorts that the angel of God has already received instructions to cut him in two (    ) for the lie; when the second testies that it was a holm (  ),5 Daniel replies that the angel of God is waiting, scimitar in hand, to saw him in half (   ). Patristic sources debate already whether the existence of this double pun is evidence that Greek was the original language of the story; Origen asked his

2

“God has given you the status of an elder.” Deut. 19:16–19. 4 Those of the Septuagint, where it appears as an appendix to the Book of Daniel, and of Theodotion (c. A.D. 150), where it is placed at the beginning. For the texts, see Charles 1913:I.638–651 (by D.M. Kay). In one or two details, Theodotion is here followed rather than the LXX (cf. NEB, following Jerome and the tradition of the Church). For literature, see Derrett 1963:11 n. 5; idem, 1970:168. 5 A type of oak. 3

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Jewish associates whether they could reproduce it in Hebrew, but they could not.6 In fact, their failure to do so is hardly conclusive evidence. Jerome partially succeeded in transferring the double pun to Latin in the Vulgate: scino/scindet, prino/secet, and a modern commentator has suggested an Aramaic reconstruction from which the Greek might have been derived.7 Most recently, the New English Bible translators have, with modest arboreal licence, reproduced the pun in English: “Under a clove-tree . . . he will cleave you in two; under a yew-tree . . . to hew you down”. The identity of the tree was of concern also to the author of a medieval Jewish version of the story,8 who makes one of the trees into a g-tree, in an apparent attempt to associate the apocryphal Daniel with the historical gure of Rabbi Yo˜anan ben Zakkai (c. 100 c.e.), who recommended that witnesses be examined even “as to the length of g-stalks”.9 The story has a pronounced anti-judicial avour. All the details point to the arrogance of the elders, and the humiliation heaped by them upon Susanna—even before her condemnation. But the tensions do not reect class conict. The victim is a highly placed member of the ruling élite—no oppressed woman of whom advantage may easily be taken. And the hero, though young, shows no signs of belonging to a different social milieu. The criticism intended by the author is thus directed at a particular type of judge and a particular form of court proceeding, and not the social composition of the bench. The point is given particular force, in terms of Jewish culture, by the theological dimension: the insufciency of the court’s evidentiary safeguards is dramatically demonstrated by the fact that God himself is forced to intervene. The particular defect in court procedure with which the author is concerned is, as Daube has shown,10 the collective taking of testimony;

6 See Reichardt 1909:79–80 and Origen’s commentary Stromata 10 (Migne Patrologia Graeca XI 104f; and in Jerome, Patrologia Latina XXV 582f.). 7 Marshall 1902:iv.632. See further Zimmermann 1957–58:236–41, arguing for a Hebrew original. 8 Yosippon MS 24 of the Edward de Rothschild Library, published by Levy 1933. 9 M. Sanh. 5:2; Sanh. 9b. 10 1949:200f.; 1961:12–14. See also Derrett 1970:185f., arguing for the relevance of the story of Susanna to Jesus’ (in effect) shaming away the accusers of the woman taken in adultery in John 7:53–8:11, and arguing for the relevance of Exod. 23:7 to both stories.

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in rabbinic procedure, a little later,11 we do indeed nd the separate examination of witnesses required. The Mishnah also requires that witnesses be questioned as to the locus delicti, and rules that contradictory evidence on this point renders the testimony invalid. But the Mishnaic text fails to specify the degree of accuracy required of the witnesses in this regard, and it is far from clear that the kind of diversitas locorum revealed by the cross-examination of the elders would necessarily have vitiated the testimony according to rabbinic law.12 Indeed, some examples preserved in the Talmud suggest by analogy that the evidence would have remained admissible. We are told that if in a murder charge one witness testied that the accused used a sword, while the other testied to the use of a dagger, the evidence is inadmissible; but if one testied that the accused’s clothes were black, while the other testied that they were white, the evidence remains admissible.13 Striking conrmation of the view that the difference between a mastick and a holm tree was not necessarily a fatal aw is provided by a recently published Falasha version of the story. In it there are three elders, and they testify that the locus delicti was, respectively, under a g-tree, in the palace, and in the women’s apartment.14 Indeed, the nature of the contradiction in the evidence may well have been of little concern to the author of the original version of Susanna. In a Samaritan version which has claims to represent a stage in the literary development of the story earlier than the Greek texts, stress is laid upon the separation of the elders, but no mention at all is made of the nature of the contradiction in their testimony.15 The introduction of the account of the cross-examination may thus be secondary; its prime purpose may have been literary rather than legal—as a vehicle for the celebrated double pun. But the nature of the defect was crucial as regards the condemnation of the elders. Whereas Susanna was entitled to be saved once any irregularity in the trial procedure was proved (even if it did not

11 M. Sanh. 3:6, 5:4. It may be noted that this was particularly necessary in a system which had no notion of perjury. Witnesses in Jewish law are not sworn, and the rabbis made it particularly difcult to succeed against them on a charge of edim zomemim: see further below at n. 18. 12 The Mishnah tells us only that the witnesses must be asked “in what place?”; the practice of Ben Zakkai in examining “as to the length of g-stalks” is recorded as an example of praiseworthy exactitude going beyond the requirements of the law. 13 Sanh. 41a (R. Æisda). 14 Wurmbrand 1963:29–43. 15 Gaster 1925–28:i.199–210.

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necessarily indicate her innocence—since the burden of proof on the prosecution, in Jewish as in modern systems of law, is heavy) one might balk at the summary execution of the elders on the strength only of an horticultural inconsistency. No use saying that this was a judgment of God, or that the guilt of the elders is a datum provided by the author. From early rabbinic times, direct divine intervention in the legal process was rejected. Proof was required to satisfy human cognitive capacities.16 From this perspective, the execution of the elders as “malicious witnesses” appeared to Jewish tradition both arbitrary and contrary to law. How could the bystanders have excluded the possibility that one or other of the elders had simply got his tree wrong, by error either of vision or of classication? The point is made in two medieval Jewish versions, in both of which it is found that neither of the trees alleged by the elders to have been the locus delicti existed in the garden at all.17 But even this adaptation, though serving to strengthen the impression of the bystander that the elders had deliberately given false testimony, fails to make the story conform to rabbinic law. For the latter required evidence that the false witnesses were at some other place entirely at the time of the alleged incident;18 no contradiction, however extreme, could itself sufce to convict. Indeed, one of the later versions of the story takes account of this legal requirement: it omits all mention of the execution of the elders.19 It is very probable that the difculty in reconciling the story with rabbinic law was one reason for the Jewish exclusion of Susanna from the Biblical canon. But there was also a second factor. Susanna proved extremely popular in the early Church, as is attested by catacomb frescoes from the early second century.20 Indeed the commentary on Daniel 21 by Hippolytus (c. 204 c.e.) is the earliest extant exegetical treatise of the Christian Church,22 and Origen’s interest has been noted already.23 The early fathers exhibit a variety of theological and moralizing concerns

16

M. Sot. 9:9, B.M. 59b. See also Falk 1972:I.113–14. MS. Rothschild 24 in Levy 1933:157–71; Gaster 1899:204f. 18 M. Makk. 1:4. 19 The Falasha version; n. 14 supra. 20 McNamara 1967:xiii.826. 21 To which Susanna became attached, identifying Susanna’s saviour with his Hebrew Bible namesake. 22 Quasten 1953:ii.171; McGuire 1967:vi.1140. It is preserved in an Old Slavonic version only, apart from a number of Greek fragments. 23 Supra, at n. 6. 17

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in their approach to the story. Novatian,24 Cyprian,25 and Zeno26 see in it proof of the merit of chastity. Augustine commends Susanna for her silence in reply to the charge.27 More difcult, from the Jewish viewpoint, are the interpretations of Ambrose,28 who cites the tale for Daniel’s possession of the holy spirit,29 and those who took Susanna as an allegory of the Church, falsely accused by the Jews.30 Indeed, the compilers of the Hebrew Bible can hardly have missed the potential of the story as a symbol of Jesus, falsely accused by the Jewish authorities. If the interest of the early Church in Susanna was predominantly theological, there were still some who appreciated the legal issues involved. The legal training of Sulpicius Severus (c. 363–420) is reected in his account:31 . . . Igitur separari accusatores jubet: unumque ex eis interrogat, sub cujus generis arbore adulteram deprehendisset. Ex varietate responsi falsitas deprehensa: Susanna absoluta: presbyteri, qui innocenti periculum creaverant, capite damnati.

In Roman law we nd rules concerning the specicity of time and place in an accusation of adultery,32 and it is possible that the Justinianic formulation of the rule, though differing from that suggested by Susanna, is inuenced by knowledge of the story. By the thirteenth century Susanna had become the standard authority in romano-canonical procedure for both the separate examination of witnesses and the exclusion of evidence vitiated by diversitas locorum. Tancred writes in his Ordo Iudiciarius (1214–16 c.e.): Et haec separatio testium per Danielem introducta est, sicut legitur in historia de Susanna et nequissimis sacerdotibus:33 . . . primo invenit Daniel testes contra Susannam discordantes de loco.34

24 De bono pudicitiae ch. 9 in Corpus Scriptorum Ecclesiasticorum Latinorum 3/3 pp. 13–25. 25 De Disciplina et bono pudicitiae PL IV 857 (if rightly attributed). 26 Tractatus 1.4.6, 2.16 (PL XI 299–300). 27 Enarratio in Psalmos 137.2 (PL XXXVII 1775). 28 De spiritu sancto 3.6.39–40 (PL XVI 785). 29 Whose functioning in such contexts had been rejected by rabbinic opinion by this time; supra, n. 16. 30 Isidore, Allegoriae 126 (PL LXXXIII 116); Rabanus Maurus, De universo 3.1 (PL CXI 66) the origins of which must go back to the early period of the separation from Judaism. 31 Historia Sacra 2.1 (PL XX 128f.). 32 Digesta 48.2.3 pr. 33 3.9.2, followed by Gratia Aretinus, Summa de iudiciario ordine (c. 1243 C.E.) 2.6.1. 34 3.9.2, followed by Gratia Aretinus 2.6.2, who advises the advocate to ask what

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Bernard of Pavia incorporates Susanna within a concise summary of contemporary learning on the matter:35 Item illud in summa notandum, quod V diversitates dem testium derogantes, scil. rerum, personarum, graduum, temporum et locorum, unde versus: Res, persona, gradus, locus, haec sint consona, tempus.36 Diversitas . . . locorum, ut in Daniele unus dixit “sub pino”, alter “sub cino” . . .

Nor was the use of this authority conned to the canonists. It occurs also in Azo’s Summa super codicem (ad 4.20), the Accursian gloss (ad Dig. 22.5.21:3), and the De reprobatione testium (61–63) formerly attributed to Bartolus.37 But the story of Susanna was to play a more signicant role than this in the development of the law of evidence. Reection upon the story, from the viewpoint of the observer without inside information, prompted yet another possible objection to the summary execution of the elders. We have seen how some medieval Jewish versions sought to remove the possibility that the inconsistency in the testimony resulted from error. Some canonists went one step further. Perhaps, they reasoned, both elders were telling the truth. After all, it was not inconceivable that the couple made love under both the mastick and the holm tree. To this there was, however, a reply. The elders had claimed that they witnessed the act together:38 thus only one act of love can have been in issue, and the evidence was indeed contradictory. Nonetheless, such an analysis produced an important negative conclusion. Diversitas temporum aut locorum did not necessarily indicate false testimony; there were circumstances in which both witnesses might be telling the truth. The argument rst appears in the Summa Decretorum of the leading Bolognese decretist Runus, written between 1157 and 1159.39 It forms there an objection, and the rebuttal of the objection, to the view (to which the author does not commit himself ) of those who argue that there is a distinction between facts quae semel et subito facta iterari non contingit, as in a charge of murdering the bishop, and facts which vel

trees were in the eld—surely an echo of Susanna. On both issues the rule occurs earlier than the citation of Susanna as authority. 35 Summa Decretalium 2.13.9. 36 The full version concludes Si variantur ista, nil sua dicta valent: Dinus Mugellanus, Ordo Iudiciorum, in Wahrmund 1905–31:II/1 p. 5. 37 But now to Jacobus Aegidius. See Caselli, Corpus Glossatorum Iuris Civilis 1970:V, p. viii. 38 This point is, indeed, clear from the ancient Greek versions, esp. LXX v. 38. 39 c.III, qu.IX; see Singer 1902:271.

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iterari habent vel longa temporis continuatione produci, such as adultery committed on different days, or treason where evidence is given of different aspects of the plot. In the former class, testes singulares may not be admitted; in the latter, they may. The doctrine proved controversial at rst. The glossed Decretum accepts it only for proof of continuing acts, not for acts liable to be repeated: testes singulares may thus be admitted to prove a single act of fornication observed by the witnesses successively through a peep-hole, or to prove the celebration of mass by an excommunicated priest, where the witnesses testify to having heard different parts of the mass,40 but not to prove repeated acts of adultery (even when committed with the same lover). The argument appears too in one of the earliest Anglo-Norman ordines judiciarii, the Ordo Bambergensis (c. 1182–85),41 where the author again doubts the doctrine. But by the end of the twelfth century it receives unqualied support from the Ordo formerly attributed to Pillius, but now to Bencivenne.42 Diversitas locorum vel temporum, says the author, is not fatal unless the act does not admit of repetition (like killing), or, where it does permit of repetition, where the witnesses testify that they saw the act together, as did the priests43 who accused Susanna. A few years later, Damasus, in his Summa de ordine iudiciario (1210–15), is still hesitant.44 What guaranteed the survival of the doctrine was its acceptance by Durantus in his Speculum Judiciale (1276).45 In the fourteenth and fteenth centuries the doctrine was further discussed and rened by, amongst others, Johannes Andreae in his Additiones to the Speculum (1346) and by Torquemada (1388–1468) in his commentary on the Decretum.46 By the sixteenth century we nd an elaborate body of learning dening the circumstances and effects of admitting such evidence.47 A threefold classication of singularitas (obstativa, adminiculativa, diversicativa) was developed.48 Singularitas was

40

Gloss ad. c.III qu.IX c.16 (“Nihilominus”). T.xv. See Von Schulte 1872:311. The language here closely follows Runus. 42 Pars III tit,13, in Bermann 1842:73f.; Wahrmund 1905–31:V/1,116f. On the attribution, see Kantorowicz 1929:73–80; Wahrmund 1905–31:V/1:xix–xx. 43 The transformation from elders to priests is not conned to Christian sources. It occurs also in M.S. Rothschild 24. 44 T.LXV in Wahrmund 1905–31:IV/4, p. 47. As the text stands, Damasus rejects the doctrine with qualications. 45 Lib. I Partic IHI 6 nus. 16–17. 46 Commentaria in Decretum Gratiani p.II lib.II qu.IX c.16. 47 Amongst the most signicant contributors are Cravetta, Julius Clarus, Prosper Farinatius, Giuseppe Mascardi, Bartholemaeus Bertazzolius, and Simanca. 48 Farinatius, De testibus Lib.III tit.VII qu.64 nus.3–4 (1592). 41

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obstativa where the issue was factum non reiterabile or where, though iterabile, it was alleged not to have been repeated. In such cases a thousand contradictory witnesses were worth less than a single uncontradicted witness, since the contrarietas was likely to have resulted from dolus.49 The example given is the elders’ testimony against Susanna. Our story thus remains part of the canonist tradition throughout an enormous process of elaboration; indeed, when Sir George Mackenzie adopts the threefold classication in his Institutions of the Law of Scotland (1684), he takes Susanna along with it.50 Whether it was indeed reection on the story of Susanna that provoked the canonists into partial acceptance of testes singulares is difcult to judge. The institution was not completely unknown in the ancient world, and channels of transmission were available.51 On the other hand, the argument from Susanna occurs in the earliest canonist discussion of the rule. We shall leave the issue open. English canonists were, of course, aware of the continental writings. Even the reformed code of English canon law, which Henry VIII attempted to promote in 1552, approved the use of testes singulares provided that their evidence tendat ad unum et eundem nem.52 A century later, the common-law judges,53 followed by Parliament,54 were more successful; testes singulares became admissible for proof of treason, the one case which all the sixteenth-century canonists accepted as an exception to the general rule in crime.55 The trial of Christopher Love for his part in the so-called Presbyterian plot (in favour of Charles II) provides the earliest extant discussion of testes singulares in England. Love objected to the evidence on the grounds that several of the acts alleged to have been committed,

49

Farinatius, op. cit., nu.36. Pars.II tit.26 nu.14. 51 The institution is attested in the Damascus Rule of the Dead Sea Sect, and is reected in the New Testament. For the ancient sources, see ch. IV, supra. 52 c.40. 53 In addition to Love’s case, discussed below, see Lord Keble in Lilbourne’s case (1649) St. Tr. 1269, 1401; the resolution of the judges in the Case of the Regicides (1660) 5 St. Tr. 947, 977; Kelyng 9 (84 E.R. 1057); L.C.J. North in Viscount Stafford’s case (1680) 7 St. Tr. 193, 1527, and the case of Stephen Colledge (1681) 8 St. Tr. 549, 620. 54 7 & 8 Will III c. 3 ss.2, 4. 55 E.g. Mascardi, De Probationibus lib.I concl.462 nus.16–17; Farinatius, De Testibus lib.III tit.VII qu.64 nus.220–2. 50

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between 1648 and 1651, had been spoken to by one witness only.56 To this, the Attorney-General made only a preliminary reply:57 My Lord, he knows there are shrewd pieces against him that he hath acknowledged, but he would take them off one by one; but when they are put together, they will not be single evidence, nor single testimony, but a continued reiteration and repetition of treason.

“Continued reiteration” bears more than a passing resemblance to the canonist terminology. Love’s objection was, however, met at greater length by Sir Thomas Witherington, second counsel for the Commonwealth:58 . . . In a case that consists of a complicated fact, that is, the reiteration of many actions, my Lord, I conceive none of those laws (requiring two witnesses) are to be intended, that for every of the particular facts there should be two witnesses: that cannot be the intention of any of these laws, that in every particular fact, that is to say, whether Mr. Love was present, at the reading of the letters; if you have one witness to that, another for the writing of them, another to the sending of them; though these three witnesses speak to several parts of the business, yet they are a concurrent testimony, for all agree to the fact.59 I well remember, my Lord, a case in the Star Chamber, against B. of Leicestershire; I think there was an information against him for bribery and extorting of fees. The matter came in the conclusion, that one man proved a bribe of 40l. and another a bribe of 40l.; but there were several witnesses to several bribes. The question now was, whether he took bribes, or no? And these tending to the same general charge, it was the opinion of all the judges, that he did extort and take bribes. The one witness spake to one bribe, and another to another; and in that case, as two witnesses made good a charge against an offender, yet in that case it was taken, that where witnesses, though they speak not in every particular, yet, all tending to the same general charge of bribery, these were taken for plural witnesses, and that was a good conviction. That was the opinion of the judges then. I mention this case only for an instance to express myself in this; for Mr. Love cannot expect, that to every particular thing laid to his charge two witnesses should be produced. But, my Lord, when one witness proves, this thing he hath done, this letter hath he written, and

56

(1651) 5 St. Tr. 43, 138–44. At 167. 58 At 178–9. Foster “Discourse of High Treason” ch. 3 s.8 in his Reports of Crown Cases 3 ed. (London 1792) 235, quoted in 5 St. Tr. 239–240, gives Witherington the credit for being the rst to suggest the use of testes singulares in treason. 59 The example here is somewhat ingenuous. The acts which Love complained were attested by only one witness ranged beyond the issue of the letter. 57

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another, that another thing he hath done, which all tend to the treason; now these are more witnesses, and two or three witnesses of the same thing, though not to the same individual thing, it is—So that upon the matter they are concurrent witnesses in this complicated fact, though not concurrent in this or that circumstance: for that is impossible in almost any action to be done.

The afnity to canonist conceptions is undeniable. Treason is here the subject of a general charge, being conceived as a single whole, the various parts of which may each be evidenced by a single witness. Farinatius had expressed a similar view,60 and had provided an explicit statement of the underlying conception when he wrote that the regula against singularitas did not apply: Quando agitur de probando unum totum, nam tunc testes singulares deponentes de diversis partibus, bene probant illud totum.61

Hale’s attempt, later in the proceedings, to show that the indictment charged a series of distinct treasons against Love,62 was directed, in part, to destroy the unity which alone justied joining the particular acts together. In Scotland, the reception of testes singulares is clearly evidenced. The Speculum of Durantus was available by 1382,63 but the earliest evidence of application occurs in the Milntoun divorce case, appealed to the Court of Session in 1667.64 Lady Milntoun had obtained a divorce in the Edinburgh Commissary Court on the grounds of her husband, John Maxwel’s adultery.65 Maxwel appears to have been quite satised with this outcome, but Sir John Whitefoord, to whom Maxwel had assigned his liferent-right

60

Supra, n. 55. De testibus III.VII.64.160. 62 At 224ff. 63 Smith 1936:187. For fteenth-century catalogues, see Smith, loc. cit.; Stein 1968:39. 64 Lady Milntoun contra Laird of Milntoun, Stair’s Decisions of the Lords of Council and Session (Edinburgh 1683) i.453; reproduced almost verbatim, in what concerns us, in Morison’s Dictionary 27–28 M 12101 (no. 215), and see 29–30 M 12636 (no. 540). Earlier in the seventeenth century, both Skene and Bisset explicitly exclude testes singulares (without qualication) in their statements of the two witness rule. See Sir J. Skene, Ane Short Forme of Proces (1609) c. 22:3, in 1774:18, quoted by Walker 1958:309; Bisset, Rolment of Courtis (1622) t.26 c. 8, in Hamilton-Grierson 1920:i.200. 65 Divorce a vinculo for adultery had been available in Scotland for more than a century. See Ireland 1958:94f. 61

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(which was forfeited as a result of the divorce)66 was not. To protect his interest he sought reduction of the decreet in the Court of Session, on grounds which included the insufciency of the evidence of adultery: Paterson in his rst examination before the Commissars, Depones that he knew John Maxwel and his Lady, and that he saw John Maxwel in naked bed with Margaret Davidson lying above her, and that he upbraided John Maxwel for it, who answered he carried not alwise his Wife about with him. Clerk Deponed that in another Moneth, at Edinburgh he saw John Maxwel in naked Bed with Margaret Davidson, and that the said John was very displeas’d at his coming into the Room. The Goodman of that House being another Witnesse, deponed that John Maxwel and another Man, and two Women lay altogether at one time in one Bed in his House, and that he saw John Maxwel very familiar with one of the Women, Embracing and Kissing her, and keeping her upon his knee, whereupon he put them out of his House. Another Witnesse Deponed, that seeing Margaret Davidson with Child, she acknowledged to him that it was to John Maxwel, and that it was commonly reported that she called the Child Maxwel after John Maxwel.

The Lords ordered a debate on the question of sufciency. For Whitefoord it was contended that: Albeit more Witnesses being singular, but not agreeing to the same Fact, or some times one Witness may be receiveable to infer Tortour, or that the several Witnesses agree not as to all the same points, and circumstances, as if the Witnesses look through a rift or hole, albeit they cannot see all at the same instant, yet all of them see the same individual Fact, or if one Witness Depone in the case of Murder, that he saw the Party accused with a bended Pistol, or drawn Sword go in to a Room, but going out saw no further, and another hear the Shot and the Stroaks, and saw the accused coming out alone, or with a bloody Sword, and a third saw the slain lying Dead in a Room, and no more than these, although they agree not as to the same points and minutes of Time, yet all agree in one Fact, but the Witnesses not agreeing to one Fact, are all single Witnesses, and are not Contestes, and so cannot be Confronted, Conrm’d, or Redargued each by other, which is the great ground of Faithfulness, and Truth of Testimonies . . .

Whitefoord thus conceded three points: that testes singulares were sufcient to infer torture; that witnesses successively viewing the same (continuing) offence were (impliedly) contestes; and that so were witnesses to distinct circumstances of the same offence. On all three there was

66

Cf. Justice v. Murray (1761) 1–2 M 334 (no. 11).

susanna and the singular history of singular witnesses 101 good authority.67 He denied, however, the sufciency of witnesses severally attesting distinct facts. In terms of the canonist classication, he accepted singularitas adminiculativa (cumulativa), but not singularitas diversicativa. In reply, the canonist doctrine of reiterable acts was adduced, and authority cited: As to the second point, it was alleged, that albeit the common rule be that in matters Criminal, the witnesses must be Contestes, both being witnesses at once to the same individual Act, yet it had these limitations. 1. That though this hold in Criminals specico, yet not in crimine generico, which may be perpetrate by reiterable Acts when the pursute is not Capital, but either for Tortour, Canonical Purgations, or to any Civil Effect, as in Adultery it is crimen genericum, by reiterable Acts, and therefore being pursued civiliter to separate the Marriage, or restore the Joynture, it might be proven by two witnesses, though not concurring in the same individual time and place, and therefore singular, albeit not single witnesses. And the Lawyers do generally give the instance in Adultery, which is a secret and transient Fact. And if such proof were not sufcient it would be impossible to prove it; but if Adultery were pursued Criminally in these Cases where it is Capital, Probation were required more exact, and agreeing in time and place. Or if the Case were in Murder, which is not reiterable, witnesses not agreeing in time and place could not prove, but in Adultery, hearesie simonie, and such reiterable Crimes, witnesses to diverse Facts being in the same Crime are sufcient; for which Clarus, Farnatius and Covaruvias were cited.

67 On sufciency for torture, see Clarus, Receptarum Sententiarum Opus 5.53.18–19. The matter, however, was disputed: Cravetta, Consiliorum sive responsorum 73.34; Farinatius, De testibus III.VIII.54.107. On successive witnesses to the same continuing act, the canonists had been agreed since the glossed Decretum (supra, n. 40), and still were (e.g. Farinatius, De testibus III.VI.64.90–61), and it was for this proposition that Mackenzie 1678:p.I tit.17 no. 7 regarded the Milntoun case as authority. On sufciency for circumstances of the same crime, see infra n. 89. Whitefoord’s example combines the problems of circumstantial evidence and evidence of different types (unus ex visu, unus ex auditu etc.). On proof of homicide see also Mascardi, De Probationibus vol.II concl. 865 nus.24–5. The example reads suspiciously like that given in several Jewish sources, where the view that such evidence (even attested by contestes) was insufcient came to prevail. See e.g. Mekhilta ad Exod. 23:7 (Lauterbach III. 169–70): “Suppose they see him pursuing his fellow-man to kill him with a sword in his hand . . . The witnesses then lose sight of him. After a while, however, they nd the one who had been pursued slain but still writhing, and blood dripping from the sword in the hand of the pursuer. I might understand that he should be declared guilty. But it says: and the innocent and righteous slay thou not.” On the development of the tradition, see Neusner 1973:205ff. The peep-hole problem (cf. the glossed Decretum above, at n. 40; Baldus C.4.20.18 nu.41; Farinatius, De Testibus III.VI.64.91) was also relevant to Jewish law, where it was debated whether successive witnesses were “disjoined”: Ket. 26b, B.B. 32a, Sanh. 30a.

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Even without the citations,68 the canonical pedigree of the passage would be undeniable. Not only are reiterable acts made an exception to the general rule, but also the classical examples, adultery and homicide, are used, and the fact that adultery is the common example of a reiterable act is recognized. The use of singulares in heresy, simony, and proceedings leading to canonical purgations is accepted by Farinatius.69 The distinction between civil and criminal effects was well accepted amongst the sixteenth-century writers, and the forfeiture of rights in a dowry as a civil effect of adultery is, indeed, explicitly accepted by Clarus and Farinatius.70 In two respects, however, the argument for Lady Milntoun departs from canonist conceptions. The issue here was not merely one of property; the decreet had pronounced divorce a vinculo. The same situation could not arise in canon law, where the effect of adultery could only be separation a mensa et thoro. But in those circumstances in which dissolution of a marriage was possible in canon law, the criminal standard of evidence was required.71 A parallel question, debated in Scotland about this time, was whether women were admissible to prove adultery in divorce proceedings.72 To the argument that some canonists did regard them as admissible, Dirleton replied that that was because the effect of divorce was separatio mensae et thori, not vinculi.73 Equally signicant is the departure from canonist conceptions revealed by the terminology. The argument for Lady Milntoun turns the canonist proof in genere (which Clarus, rightly, identied with proof ad civilem effectum)74 into proof of a crimen genericum. In the present argument, the only possible effects of such proof are said to be torture (designed

68

Neither the report nor the pleadings, preserved in the Scottish Record Ofce, give the exact citations. Covarruvias discusses testes singulares only in the context of usury. 69 De testibus III.VII.64.202, 218 (heresy, adverting to procedure before the Inquisition); 274 (simony); 219 (canonical purgations). 70 Clarus, Receptarum Sententiarum Opus 5.53.19; Farinatius, De testibus III.VII.64. 229. 71 Bertazzolius, Decisivarum Consultationum 273:5; Farinatius, De testibus III.VII.64. 119. 72 Monteith v. Monteith (1683) 37–38 M 16684 (no. 94), in which the Court of Session held that they were admissible ad civilem effectum (including, in its view, divorce). 73 1698:224f. Conversely, but to similar effect, it had been argued for Lady Monteith that if the canon lawyers rejected women witnesses even for separatio, Scots law ought all the more to reject them for divorce a vinculo, 37–38 M 16688. 74 Infra, 107f.

susanna and the singular history of singular witnesses 103 to extract a confession), canonical purgations, or any civil effect.75 Later, this crimen genericum was to become the “general charge”, which could be proved by testes singulares with criminal effect. The Lords of Session refused reduction of the decreet, nding the adultery sufciently proven by the witnesses. But their view on the point of law cannot be satisfactorily ascertained. There were, as we have seen, four witnesses. The evidence of Paterson and Clerk was acceptable eyewitness testimony of adultery,76 that of Paterson, indeed, being as unambiguous as could be imagined. That of the third witness was not quite so reliable. The account in the report suggests that the witness may himself have forestalled immediate implementation of a clearly adulterous intent. The fourth witness testied, ex auditu, to Maxwel’s paternity. Only if the evidence of this last witness (about which no exception seems to have been taken)77 is discounted is that of the testes singulares unsupported. Nevertheless, the case became a precedent for the sufciency of testes singulares in divorce proceedings,78 and its repercussions were to extend also to the criminal law.79 For the modern version of the rule, it is another attempted perversion of the course of justice that was to prove crucial. The (unreported) case of the Reverend James Hogg and Thomas Soutar (1738), preserved in a MS Book of Adjournal in the Scottish Record Ofce,80 provides the basis from which Scotland has developed the “Moorov doctrine”,81 which Lord Hailsham in 1973 eagerly sought to incorporate into English law in DDP v. Kilbourne.82 75 Scots law, like Roman law and canon law, had long regarded the adulterer as an inhabile witness. See Fragmenta Collecta cc.18, 19 in The Acts of the Parliaments of Scotland (1844) i.744. 76 In theory, even eyewitness testimony that the parties were together naked in bed was not direct evidence of adultery. But it created, as Mackenzie t.XVII s.7 (citing Farinatius) puts it, a “strong and violent presumption”, which the law here accepted as sufcient. 77 Exception was, however taken to the fact that both Clerk and Paterson’s knowledge of the identity of the woman they saw in bed with Maxwel (though they both knew she was not Maxwel’s wife) was ex auditu. 78 Mackenzie p.II t.6 no.14; Hogg and Soutar (1738) infra; Dickson 1864:II.1184, cf. Hamilton Grierson’s 1887 edition, vol. II, pp. 987–88. 79 Already Mackenzie, p.I tit.17 no.8, though disapproving such an extension, did not completely rule it out. His equivocation was later to lead to his being cited by both sides in Hogg and Soutar. 80 Book of Adjournal for Feb. 27, 1738 June 11, 1739, 136ff. The extracts that follow are published with the approval of the Keeper of the Records of Scotland, for which I am duly grateful. For the full memorial, see Jackson 1984. 81 Moorov v. HM Advocate 1930 JC 68. 82 [1973] A.C. 729.

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The case of Hogg and Soutar represented the culmination of a long feud in the parish of Caputh between the laird, David Haggart of Cairnmuir, and the minister, James Hogg, in the course of which the latter’s accounts had come under suspicion, his manse had been burned down, and proceedings for scandal had been initiated against him in the Commissary Court. The minister was determined to have his revenge. He caused an information to be laid against the laird, charging him with responsibility for the burning of the manse, incest, and perjury in the scandal proceedings. Haggart was imprisoned following the charge, but at the hearing Hogg’s own witnesses claimed to have been suborned, and the prosecution was abandoned. Haggart was not content to have his name cleared. He initiated criminal proceedings against Hogg for subornation of testimony. A procession of witnesses testied to the approaches made to them by Hogg and his accomplice, Soutar. But the jury encountered a difculty. Scots law had received the ancient rule requiring corroboration.83 In this case, each act of subornation was evidenced only by the witness concerned. Yet the majority of the jury clearly considered the accused guilty. They returned a verdict in the following form: Found, that the crime of Subornation or Endeavouring to Suborne People to be witnesses, as Lybelled against the Pannell, Mr. James Hogg, Proven in Sundry Facts, Each Fact only by one single Witness.

The court was taken by surprise: the verdict was potentially contradictory—on the one hand a nding of “guilty”, on the other a statement which threw doubt on the legal sufciency of the evidence. The court adjourned and sought memorials from the parties on the legal position. For Haggart it was argued that the jury’s statement on the evidence could not detract from the general verdict of guilty; but that in any case the evidence found proved by the jury was legally sufcient. The issue was thus joined on whether testes singulares could be admitted to prove a criminal charge. From Hume’s short account of the case,84 one might suppose that the question was determined without reference to foreign authority or established concepts. The memorials reveal an entirely different picture.

83 Bisset i.200; Balfour 373; and Stair IV.xliii.1.2, quoted by Walker 1958:309. Balfour and Stair quote the Biblical text; Bisset alludes to it in the phrase “ve at the leist”. 84 Commentaries 1800:ii.236–37.

susanna and the singular history of singular witnesses 105 They show that Hogg and Soutar represents a crucial bridge between the medieval and modern doctrines. Counsel for Haggart posed the issue in standard canonist terminology. In part, they built upon the argument in Milntoun, that testes singulares could be used for proof of a general charge. But they went a signicant step further. They claimed that such proof was sufcient even for criminal conviction. Moreover, they showed little concern to circumscribe the type of general charge that admitted of such proof. They submitted: Where a Crime is Charged of a General Nature, Capable of Reiterated Acts, every Act laid as tending to the same End, is a Qualication and Circumstance of the General Charge; and, therefore, the particular circumstances may well be conjoined to make out the general Charge, as well as in the Case of other Circumstantiate Evidence . . .

First and foremost of the authorities cited is the English treason doctrine, where, they observe, the charge, such as compassing and imagining the death of the king, is of a general nature, the overt acts tending towards it being charged as circumstances. Yet each overt act need be proved by only one witness.85 The analogy is not entirely arbitrary. In treason, the overt acts are part of a single plot, directed to a single, specic purpose; in subornation, the approaches to different witnesses are likewise part of a single plot, directed to a single purpose, the conviction of the victim in a single proceeding (if not, necessarily, on a single charge). The memorial then proceeds to adduce continental authorities. The Codex Fabrianus86 of Savoy is quoted for the rule that furtum in genere may be proved by testes singulares even though the witnesses are to different thefts; the anomalous result being that the accused may be punished tanquam fur, but no order for restitution of the stolen property may be made since no single theft has been proved. The next authority is Gaill’s Observationes Practicae (1663)87 where it is said that testes singulares are regularly regarded as sufcient quando aliquod in genere probandum est, puta Titium esse insanium aut furiosum. The context of Gaill’s discussion, not mentioned in the memorial, is proof of a hunting servitude.

85 The memorial cites Lord Chief Justice Holt in Parkyns (1696) (13 St. Tr. 63, 131–32) and 7 & 8 Will III c. 3. 86 Lib.6 tit.2 den.5. 87 Lib.III Obs.66 nus.11–12.

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Carpzovius’ Processus Juris in foro Saxonico (1708)88 is then quoted for the general proposition that the witnesses may be singulares when time and place are not de substantia. “And then he goes on to give some instances.” It is hardly surprising that counsel omitted to quote the examples: they are of proof of possessio, iurisdictio and aditio haereditatis. Nevertheless, the memorial proceeds to argue that: . . . in the present Case, it could not be said, That Time or place is of the Essence of the Crime; for it was the same thing, and made no alteration, at what Time or place the Pannels might have suborned the Witnesses . . .

The next recourse is to reasoned argument: the fact that singulares cannot be challenged as contradictory, since they testify to different facts, cannot be fatal, since such is the effect of “Singular, Adminiculative Witnesses”, who each testify to different circumstances surrounding the same alleged fact.89 Counsel then turned to Scottish authority, citing Sir George Mackenzie’s reference to Milntoun, but suggesting that his explicit reservation as to the application of the principle to criminal cases was inconsistent with his acceptance of singulares testifying to different items of circumstantial evidence. Reference was also made to two criminal trials of 1705, neither of which, however, clearly supported the proposition for which they were adduced, that there was authority for conviction on the evidence of a single witness, without cumulative circumstances.90 The memorial concludes with a policy argument, that unless the witnesses could be conjoined, there could never be proof of “an occult Crime of this Nature, capable of Reiterated Acts”. After a number of preliminaries, the memorial for Hogg set about demolishing Haggart’s authorities. Mackenzie’s view was that evidence by singular witnesses of two different acts of adultery, even though committed with the same woman, was not probative in a criminal prosecution. Indeed, counsel ventured to doubt the authority of Milntoun as a precedent for proof sufcient to support a divorce.91 The Books 88

Tit.XIII art.III nu.85. Whether such testimony should be classied as exhibiting singularitas adminiculativa is doubtful. That term denotes evidence deriving from different types of proof (unus ex visu unus ex auditu etc.) and the effect was only semiplena probatio: Cravetta, Tractatus de antiquitatibus temporum 4.4.3; Farinatius. De Testibus III.VII.64.52, 113. As for eyewitnesses to different circumstances, see Farinatius, De testibus III.VII.65.16–20. 90 Trials of Gabriel Clark and William Bisset. The opposing memorial counters with the corroborative evidence in these cases. 91 The memorial states that the Court of Session had held in a recent (unreported) 89

susanna and the singular history of singular witnesses 107 of Adjournal showed that a verdict of not proven was the common outcome where different acts of the same crime had been proved by single witnesses, and no instance could be found of a conviction on such a basis. Haggart’s case was founded upon a distinction between specic and generic crimes, and, in particular, upon the view that subornation in general could be proved by testes singulares. Both the distinction, and its application, were strongly denied: It was answered, rst, That the Subornation of Witnesses is in no other Sense a Generick Crime, than Murder, Adultery, or Theft; Suborning of one Witness was equally different from the Subornation of another, as Committing Adultery with one Woman was different from committing Adultery with another, or as the Theft of one Cow from one Man was different from the Theft of another Cow from another . . . But, Secundo, Mr. Hogg was advised, that a Criminall Prosecution could not be Carried on for a Crime in Generall, that a Special Fact must be Lybelled and proved, and unless each Fact is proved by two Concurring Witnesses, it is not proved at all; That a Proof of one Crime can be no Proof of another Distinct Criminall Fact of the same kind.

If conviction on a similar charge (on the evidence of two witnesses) could not be conjoined with the evidence of a single witness, how could the evidence of a single witness to a similar allegation be conjoined? A general charge, was, moreover, contrary to the Natural Rights of Mankind, since it denied any real possibility of defence. The distinction between proof in genere and in specie had, in fact, been misunderstood: And in this Mr. Hogg was supported by the General Opinion of the Doctors, who though they speak and treat of proving a Crime in General, and a Crime in Special, with great Indistinctness; Yet when they are rightly understood, they don’t differ, but agree with what we now plead; particularly Julius Clarus, in his Receptis Sententiis, Lib. 5. n Quaestio 53 no. 18 et seq.

The passage then quoted92 explicitly identies proof in specie with penal and proof in genere with civil effects, such as forfeiture of dowry for

divorce case, of Ederline, that “single witnesses Deponing to different Facts, could not be Conjoined, even so as to infer a divorce”. See, however, Dun v. Bryce (1746) in Walton 1940:130f. 92 “Where, after having observed, That Single Witnesses don’t prove, he adds: et haec conclusio de plano procedit, quando agitur de probando aliquo Delicto in Specie, nam eo Casu debent Testes esse contestes ut sufciant ad Condemnationem; Sed quid si agatur de probando Delicto in Genere, puta aliquem esse Hereticum, Adulteram, Usurarium, Blasphematorem, vel huiusmodi, numquid Testes Singulares, qui Deponunt

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adultery, and reduction of the suspect’s testimonial credibility. It is this passage which must lie behind the general citation of Clarus in the report of Milntoun,93 and the analysis it contained had gained its author much credit in his own and the immediately succeeding generation.94 The memorial goes on to cite Farinatius to the same effect.95 It seems very likely that counsel found his way to these authorities by way of Stair’s report of Milntoun. But all credit must be given. The Milntoun report cited Clarus and Farinatius only in a very general manner. Counsel for Hogg indentied the vital element in the doctors’ analysis. Nor was there any evidence, the memorial continues, of any Scottish case where a crime in general had been libelled, much less sustained. The nearest approach had been in another charge of attempted subornation of witnesses, brought against Barrisdale in 1735,96 where the general article had charged that the pannel “did at several different times and places, betwixt the rst of April 1734 and the rst of December 1735, endeavour by Rewards, Threatenings, and other undue Methods, to Induce several Persons to give Evidence against the Complainers . . .”, after which the libel proceeded to particularize the attempts, giving persons, times, and places. The general article had been dismissed by the court, and the decision was authority for the view that subornation in general could not be libelled. Though the court had, in Hogg’s case, already found the whole libel relevant, the evidence of the witnesses

unusquisque eorum de diversis Actibus, Sufcient ad concludentem probationem. And after having observed a Number of the Doctors who were for the afrmative, he adds, Ego aliquando cogitabam, quis esset Sensus Doctorum ita loquentium de probando Delicto in Specie, vel de probando Delicto in Genere, et credo quod Secundum eos tunc dicatur agi de probando Delicto in Specie, quando tractatur de puniendo aliquid Criminaliter, Et hoc Casu verior est Secunda Opinio, quod Scilicet Testes Singulares non probant aliquem esse Adulterum, vel Hereticum, vel Usurarium, et ita Semper vidi servari; And after quoting Authoritys, he adds, Tunc vero agi dicunt de probando Delicto in Genere, quando agitur non de poena instigenda, sed ad alium nem, puta excipiendo de Adulterio ad privationem Dotis, vel de alio Crimine ad Diminuendam dem Testis. Here ’tis apparent, that this learned Author had no Notion of a Criminal Accusation for a Crime in General, or of proving a Crime by Single Witnesses to different Acts.” 93 Supra, 101. 94 Bertazzolius, Decisivarus Consultationum 20:19; Farinatius, De Testibus III.VII.64. 229. 95 De testibus III.VII.64 nus. 200, 217, 218, 228 and 232. 96 Book of Adjournal for Feb. 5, 1734–Feb. 9, 1736 898ff. For the argument in support of the general charge, see 927–30; for the argument against, 972–73; for the interlocutor of relevancy rejecting the general article, 999–1001.

susanna and the singular history of singular witnesses 109 ought to be taken only on the particular subornations alleged, so that two witnesses were required for proof of any one particular charge. This last argument was hazardous, since counsel was, in effect, asking the court to deprive its earlier decision on the relevancy of the libel of practical effect. Counsel therefore proceeded to plead in the alternative. If subornation in general was relevantly libelled, the jury’s verdict still did not disclose a nding of evidence sufcient to support the charge. Hogg was charged with attempts to suborn witnesses on three different charges, re-raising, incest, and perjury in scandal proceedings which Haggart had brought against Hogg in the Commissary court. These were very different subornations, and even if the evidence of testes singulares on any one would sustain a general charge of subornation to prove a particular offence, the jury’s verdict did not disclose which single witnesses had been believed. It was not, therefore, clear that more than one attempted subornation to prove any one of the three accusations had been found. The limited extent of the concession made in this alternative plea is noteworthy. Counsel did not accept that attempted subornation was, per se, relevant as a general charge. At the very least, attempted subornation for proof of a particular charge was required. The link between the charges had to be more than the mere desire to convict the accused of attempted subornation; the testimony sought had to be directed to proof of the same charge. Next, counsel turned to those foreign authorities which most appeared to support Haggart’s case, foremost amongst which was the English treason doctrine. No objection was taken to the comparability of the specic rule. But with sound comparative method, the memorial set the English rule against its background: in England an accused did not come to trial unless committed by a grand jury’s indictment, and even when brought to trial could not be convicted unless the trial jury was unanimous. The dangers of wrongful conviction were therefore mitigated by safeguards which did not exist in Scotland; and, indeed, had Hogg been tried in England he would have been acquitted, for the Scottish verdict against him had not been unanimous. Secondly, there were a number of decisions cited by Huber which, counsel conceded, did seem to show that single witnesses to different facts had been found sufcient to prove a crime.97 But these rulings were the

97

Ibid., 421–22, citing Praelectionum juris Romani, ad Dig. 22.5 tit. De Testibus nu. 18,

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local law of Friesland, and, on Huber’s own view, were contrary to the general rules of law, and thus ought not to be followed as a precedent in Scotland. Finally, Hippolitus Rimaldus had been cited to show the use of singulares for proof of heresy before the Inquisition. The effect, it was suggested for Hogg, was only to oblige the suspect to recant, “But indeed, when the Pursuer argued from the Rules Observed in the Popish Inquisitions, to the Rules of the Law of Scotland, he show’d how much he was Straitned; And as even those won’t Serve his turn, ’twas plain that what he plead was not agreeable to the Law of Scotland.” The memorial concludes by rejecting the policy argument advanced for Haggart, that subornation was especially difcult to prove. There seems no doubt that, on the authorities, Hogg and Soutar had the better case. Nevertheless, the court adjudged them infamous, decerned them to pay Haggart £250 damages, and banished them from Scotland, on pain of transportation should they return. On the reasoning accepted by the bench, we are not informed. At any rate, the scope for proof of crime by testes singulares has expanded considerably since Hogg’s case; the very specic types of nexus required by the canonists and implicit in cases such as treason and adultery with the same partner (to the spirit of which the decision in Hogg’s case could be understood to conform) were replaced by far wider criteria.98 This, in brief, has been the story of the reception in Scotland of the doctrine prompted in part by canonist interpretation of a Jewish legal legend. But that canonist interpretation may well have theological roots, in the use of testes singulares in the New Testament itself. 99

for the cases of Antonius de By (1645) and Christianus Siamburg (1681). Cf. Huber’s Heedensdaegse Rechtsgeleertheyt Bk.5 ch. 27 s.42, translated Gane 1939:ii.295–6. This, the most telling foreign authority adduced for Haggart (as the opposing memorial implies), is omitted from the memorial on his behalf, as recorded in the Book of Adjournal. 98 See Vandore 1974. 99 Ch. 4, supra.

CHAPTER SIX

THE JEWISH BACKGROUND TO THE PRODIGAL SON: AN UNRESOLVED PROBLEM* I Luke 15 11 12 13 14 15 16 17 18 19 20 21

And he said, There was a man who had two sons; and the younger of them said to his father, ‘Father, give me the share of property that falls to me.’ And he divided his living between them. Not many days later, the younger son gathered all he had and took his journey into a far country, and there he squandered his property in loose living. And when he had spent everything, a great famine arose in that country, and he began to be in want. So he went and joined himself to one of the citizens of that country, who sent him into his elds to feed swine. And he would gladly have fed on the pods that the swine ate; and no one gave him anything. But when he came to himself he said, ‘How many of my father’s hired servants have bread enough and to spare, but I perish here with hunger! I will arise and go to my father, and I will say to him, Father, I have sinned against heaven and before you; I am no longer worthy to be called your son; treat me as one of your hired servants.’ And he arose and came to his father. But while he was yet at a distance, his father saw him and had compassion, and ran and embraced him and kissed him. And the son said to him, ‘Father, I have sinned against heaven and before you; I am no longer worthy to be called your son.’

* I am most grateful to three audiences for their reactions to earlier versions of this paper: the Ehrhardt seminar, University of Manchester (December 2003); the XIIIth Biennial Conference of the Jewish Law Association, Boston (August 2004); and the Colloquium on The New Testament and Rabbinic Literature, Katholieke Universitet Leuven and Institutum Iudaicum, January 2006. I have beneted particularly from valuable comments and bibliographical suggestions in further correspondence with Gerald Downing of Manchester and Leib Moscovitz of the Talmud Department of Bar-Ilan University.

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But the father said to his servants, ‘Bring quickly the best robe, and put it on him; and put a ring on his hand, and shoes on his feet; and bring the fatted calf and kill it, and let us eat and make merry; for this my son was dead, and is alive again; he was lost, and is found.’ And they began to make merry. Now his elder son was in the eld; and as he came and drew near to the house, he heard music and dancing. And he called one of the servants and asked what this meant. And he said to him, ‘Your brother has come, and your father has killed the fatted calf, because he has received him safe and sound.’ But he was angry and refused to go in. His father came out and entreated him, but he answered his father, ‘Lo, these many years I have served you, and I never disobeyed your command; yet you never gave me a kid, that I might make merry with my friends. But when this son of yours came, who has devoured your living with harlots, you killed for him the fatted calf !’ And he said to him, ‘Son, you are always with me, and all that is mine is yours. It was tting to make merry and be glad, for this your brother was dead, and is alive; he was lost, and is found.’ (RSV)

Reading the parable without presuppositions leaves many issues open. What was the nature of the original division of the estate? What did each of the sons get and what did the father retain, if anything (so as to be able to organise a feast on the fatted calf on the prodigal’s return)? When the prodigal “came to himself ”, does this indicate “repentance” or just economic realism? When he decided to confess to his father, was he sincere, or was he calculating that he would be able to manipulate his father’s natural emotions? Is the father interested in the genuineness of his son’s apparent repentance? Is his use of the language of dead/alive, lost/found to be taken literally or metaphorically? When the prodigal returns, and the older son complains “Lo, these many years I have served you, and I never disobeyed your command; yet you never gave me a kid, that I might make merry with my friends”, did he not have his own share of the original division? Is he just jealous of the feast, or does he have other, material fears regarding the return of the prodigal? When the father responds: “Son, you are always with me, and all that is mine is yours”?, what kind of reassurance is he giving, and ought the older brother to be satised with it? When the father justies the feast by saying: “It was tting to make merry and be glad, for this your brother was dead, and is alive; he was lost, and is found”, is the

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older son being rebuked, and what are the implications regarding the future relations between both father and older son and the two brothers? Does the prodigal take the place of the older brother in his father’s affections? And who do the older and younger sons represent? We have here a veritable mélange of legal, literary, theological and historical problems, all of which, I shall argue, benet from the light which can be cast from their Jewish background.1 However, simply to proceed to an interpretatio Hebraica begs a number of methodological problems, which must at least be acknowledged, even if they do not admit of easy answers. What is the relationship between the socio-legal content of the parable (concerning property relations within the family), its overt theological meaning (concerning forgiveness) and its gurative theological message (the referents of the gures of the father and his sons, and the message concerning their inter-relations)? In particular, which (if any) should we privilege in interpreting the meaning of the parable? My instinct is to proceed from the narrative itself to its overt theological meaning, and thence to its gurative theological message. A parable, one may argue, has to be transparent,2 in the sense that its narrative meaning must be unproblematic, since, if this were not the case, the audience would be distracted from its theological signicance. 1 Pace Holgate 1999, who seeks to reduce the parable to the general categories of (an avowedly eclectic) Greco-Roman moral philosophy. This, in my view, fails to do justice to many of the details of the parable. Even if Goulder 1989:II.612 is correct in claiming that it is a feature of Lukan parables that much of the detail does not count towards its “parabolic religious meaning” (“where his predecessors have on average three points out of four consistent with the allegory, Luke here has perhaps one out of four”), we still need to make sense of it in narrative terms. Holgate claims (at 250): “Two exegetical cruxes are decisively addressed by this moral reading, the unity of the parable and the nature of the younger son’s repentance”, but this is far from the only, or most persuasive, response to either of these problems, as the argument below indicates. Holgate claims also that “the moral resonances of many other terms become evident and we are enabled to identify accurately the particular types of vice and virtue being addressed.” Yet such readings do not exclude, nor does Holgate claim that they exclude, more culturally “local” accounts. Even if we concede that the parable could be read in terms of Greco-Roman morality (the range and understanding of which is so wide that one wonders what could not be so read), this proves nothing about its original author or audience. However, the most signicant criticism of Holgate’s account is that it vastly exaggerates the older brother’s “meanness” (based in part on a misconception as to his rights following the original division) and the father’s reaction to it. On this, see further infra, s.II. 2 I do not mean by this that its theological meaning must be transparent: on the contrary, if it were, it would not succeed in initially “taking in” its addressee, as in some uses of parables in the Hebrew Bible, such as Nathan’s parable, in criticising David for the death of Uriah and the taking of Bathsheba: 2 Sam. 12:1–7; see further Jackson 1972a:145–48.

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Thus, when we consider the details of the story of the prodigal son, we have to assume that the behaviour of the participants in this story (including, even, the ambiguities generated by their behaviour) would have been transparent to the audience of the parable, in terms of the social/legal institutions of the time.3 But whose time and institutions are we talking about? Is it (to simplify the matter) Jesus’ Jewish audience, to whom we may attribute knowledge of at least basic halakhic institutions, or is it Luke’s gentile audience, to whom we may attribute (apart from somewhat different social institutions) a greater concern with the theological issues? New Testament scholarship has, indeed, agonised over this question, and diachronic answers—distinguishing between an original parable attributed to Jesus and Lukan (indeed, also sometimes post-Lukan) additions—are not lacking.4 Such a diachronic difculty is paralleled on the Jewish side. Any interpretation of New Testament texts in terms of the halakhah has to be careful about the dating of the halakhic texts it uses: the rules found in Mishnaic texts are not necessarily to be read back to the time of Jesus; indeed, New Testament texts may sometimes contribute to our understanding of the history of the halakhic institutions themselves. The interaction of these issues—the choice of the controlling genre on the one hand, the diachronic analysis of both the halakhic and New Testament sources on the other—may be illustrated at the outset by highlighting one of the central interpretive issues: did the gift to the younger son exclude him from all future interest in his father’s estate, and did the father (despite his attempted reassurance to the older son at the end of the parable) either restore the younger son to his original position in the family or at least reintegrate him into the family as a (dependent) member with a claim for support? Any such view suggests a “strong” understanding of the overt theological meaning, in terms of sin, repentance and forgiveness, and may indicate a supersessionist gurative message. However, the classical halakhic sources, as we shall see, provide a quite different account of the effect of an “advance” to a son. But are these sources to be read back to the time of (even) Luke? There are, in fact, other Jewish sources which have been taken to indicate just such a disinheritance of a son, as a result of making

3 Derrett 1970:101 observes: “The Jewish public knew the law relating to the family intimately and no more familiar topic could have been chosen.” 4 E.g. infra, nn. 100, 132, 155.

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an advance. If we take the theological messages to control our reading, then we may indeed argue that the parable assists in our reconstruction of early halakhic history. But should we allow the theological message to control our reading of the socio-legal situation depicted in the narrative, or should we, rather, proceed in the opposite direction? To a degree, my “instinct . . . to proceed from the narrative itself to its overt theological meaning, and thence to its gurative theological message” may be justied as proceeding per notum ad ignotum—at least in the sense that the narrative is accorded the most explicit statement (even if its interpretation is not unproblematic) while the gurative theological message is left entirely to implication. Yet such a procedure cannot be applied rigidly. Ultimately, we must seek a reading which is coherent at all three levels, and if this demands revision of our initial understanding of the socio-legal implications of the narrative, so be it. II I commence my interpretatio hebraica of the narrative by emphasising an important point apparently unnoticed in the modern literature: the distinction between the property which the father had at the time of dividing his living before the departure of the prodigal, and lateracquired property. Jewish law does not, in principle, recognise a “will” in the modern sense: dispositions of one’s estate during one’s lifetime have to be made in the form of a gift,5 and applied to property in the possession of the donor at that time.6 Indeed, the Tosefta is quite explicit about this:

5

See Yaron 1960:32f., on M. B.B. 8:6, where a diathiki found on the body of a deceased person is held of no effect, not having been delivered to the donee. There is an exception for death-bed declarations (shekhiv mera): see Yaron, ibid., 61–88; Shilo 1973; Edrei 1997 and further literature there, at 2 n. 5. 6 Shilo 1973:519, 521f. notes the survival of the rule that “it is not possible for the legator to bequeath by way of mattenat bari any property except that which is then in his possession” into the classical commentary in the Shul˜an Arukh (Rema, HM 257:7), together with a device, attested already in Resp. Rashba 3:118, which circumvents this restriction by creating a ctitious debt (for a huge sum well in excess of the total value of the estate, not payable until one hour before death), acknowledged (odita) by the testator. In the modern version drafted by Grunfeld 1987, the debt is secured by the following clause: “All the property that I have beneath heaven, that which I now possess or may hereafter acquire, . . . shall be mortgaged to secure the payment of these debts during my lifetime and after my death from the present day and forever.” See further

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chapter six Whoever assigns his goods to his son and then acquires other goods—anything not included in the (rst) gift belongs to the heirs.7

It is, therefore, possible that the father acquired further property after the departure of the prodigal, and it is this which included the “fatted calf ”. However, we are not told how long the prodigal had been away; clearly, he had already spent his inheritance by the time the famine commenced,8 so that events from that point will have been quite rapid. It may not, then, be justiable to assume any signicant acquisition of property while the prodigal was away. On the other hand, the prodigal is impliedly a young man at the time he departs for the “esh pots”; his father may therefore not yet be elderly.9 There is thus a substantial chance of the acquisition of further property before his death, despite the assumption in some sources that it is common for one who disposes in his lifetime to be left impoverished.10 The Mishnah knows of two types of voluntary dispositions of property by a person in advance of his death.11 One is a deathbed gift,

Judah Dick, “Halacha and the Conventional Last Will and Testament”, http://jlaw. com/Articles/last_will_and_testament1.html. 7 T. Ket. 8:5. Zuckermandel does not read rishonah but attests the variant; Lieberman adopts it; see also Yaron 1960:55. Lieberman 1967:319 doubts that this can be qualied by a deikne clause (to include after-acquired property). On deikne in other contexts, see Assis 1982:151f., to which Leib Moscovitz has kindly drawn my attention. 8 Bailey 1992:120 observes that “great famines do not happen over night.” 9 Cf. Bailey 1992:118. 10 Sir. 31:19, 23: “. . . give not power over thee while thou livest; and give not thy goods to another, lest thou repent and make supplication for them . . . in the time of thy death distribute thine inheritance” (quoted by Derrett 1970:105). See further Scott 1989:109–11, comparing (at 110) B.M. 75b: “Three cry out and are not answered . . . he who transfers his property to his children in his lifetime.” 11 Jewish sources give no support to a major plank in Bailey’s interpretation of the parable, that the prodigal, in seeking the advance, wishes his father dead: see Bailey 1983:161; idem, 1992:109, 112, 177 (attributing this motive also to the older son on the prodigal’s return); idem, 2003:95; see also Rohrbaugh 1997:150. Here and elsewhere, Bailey works from a methodologically questionable premise: that one should interpret both the parable and near contemporary Jewish sources against a construct of “Middle Eastern” custom heavily informed by medieval Arab Christian interpretation and contemporary Arab custom. His argument, 1992:112–114, that the younger son’s request was so socially unacceptable as to evoke absolute horror (based on Sir. 33:19–23 (see n. 10, supra) and B.M. 75b) takes no account of the Mishnah’s regulation of such advances, M. B.B. 8:7(b), quoted infra, at 120. At 127f., he accepts that “the evil set forth in the story is primarily in terms of broken relationships, not broken laws. There is no specic legislation against a son requesting his inheritance from a relatively young healthy father.” Yet the degree of disparity Bailey’s argument implies between social acceptability and legal permissibility must prompt hesitation.

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a shekhiv mera, which does indeed take effect on death,12 and may be made only by a person who is genuinely on his deathbed (though later extended to other situations involving mortal peril).13 We may note that this is precisely the context in which the biblical narratives portray two of the three patriarchs as disposing of their property,14 though they do not concern themselves with the details of the institution as developed by the Rabbis, such as what happens if the “testator” recovers15 or if he fails to dispose of his entire estate.16 On the other hand, the Mishnah also knows of a gift made by a person not on his deathbed, where it is assumed that the donor is likely to live for a substantial period, and maintain an interest in his property, which will become that of his heir, in absolute terms, only on the donor’s death. This was called the matanat bari, the “gift of a healthy man”. It customarily used the formula that the gift is given “from today and after my death”. A similar formula is found in the Aramaic papyri from Elephantine,17 a fact which allows us to be reasonably condent that we are dealing here with an institution which already existed in the time of the New Testament, and was not invented late in the tannaitic period.18 The Mishnah describes the division of interests which such a gift generated in Baba Bathra 8:7(a):

12

M. B.B. 9:7; see further Yaron, supra n. 5. See Yaron 1960:29–31. Maimonides, Laws of Gifts 8:2, denes the required state of health of the testator thus: “a sick man whose entire body has been weakened and whose strength waned because of his sickness, so that he cannot walk outside and is conned to bed, is called one critically ill.” Implicit in many of the rules is the assumption that the donor makes the gift on the assumption that he is not going to recover. See also Shilo 1973:XVI.519f. 14 Gen. 25:5–6 (Abraham); Jacob’s dispositions, discussed infra, 139, are preceded by the observation: “And when the time drew near that Israel must die . . .” (Gen. 47:29). Isaac’s blessing of Jacob and Esau does not fall within this pattern; Isaac is still alive when Jacob returns after 20 years in the household of Laban. On Bailey’s attempted identication of Jacob as the model for the prodigal, see infra, n. 112. 15 See further Yaron 1960:81–84. 16 See further Yaron 1960:67f., 85–89, arguing that this rule is not of tannaitic origin; Maimonides, Laws of Gifts 8:14–15. 17 See, e.g., Cowley 8, line 3: “Mahseiah son of Jedaniah . . . said to lady Mibta˜iah his daughter: I gave you in my lifetime and at my death 1 house, land, of mine . . .”, in Cowley 1923:22. 18 Yaron 1961:78 maintains that “in my lifetime and at my death” here “has nothing to do with dispositions in contemplation of death”, and argues, at 1960:120–22, that it is quite distinct from the formula in a matanat bari, in that it is designed to protect the donee (of an immediate gift) from any possible claim from the family of the donor after the latter’s death. In technical terms, this may well be correct, but functionally the two expressions address a similar issue: whether the terms of a gift are altered by the death 13

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chapter six If a man assigned his goods to his sons he must write, ‘From today and after my death’. So R. Judah. R. Jose says: He need not do so. If a man assigned his goods to his son to be his after his death, the father cannot sell them since they are assigned to his son, and the son cannot sell them since they are in the father’s possession. If his father sold them, they are sold [only] until he dies; if the son sold them, the buyer has no claim on them until the father dies. The father may pluck up [the crop of a eld which he has assigned ] and give to eat to whom he will, and if he left anything already plucked up, it belongs to [all ] his heirs. (Danby)

Put in contemporary terms, the father retains a life interest19 in the property, and the son has a future (vested)20 interest. In principle, the father cannot interfere with the future interest of the son, by making some use of the property which would prejudice that future interest; conversely, the son, though he can immediately dispose of his future interest, cannot do so to the prejudice of the life interest of the father. Of course, if the father and son agree to the complete disposal of property subject to this kind of gift, they can do so. The father can dispose outright of property in which he has only a life interest, if he makes an arrangement with the son to do so, perhaps on the basis of some material compensation. Equally, the son could dispose outright and immediately of his future interest, provided that he has the agreement of his father to release his life interest, again no doubt on the basis of some alternative arrangement. This is the nature of the interest given to the older son, when the father divided his estate before the prodigal’s departure: a classical matanat bari, in which the father retains a usufruct.21 Here, then, we have a clue to the concern of the older son regarding the fatted calf. If this forms part of the property which the father had

of the donor: in the matanat bari, they are (to the donee’s advantage); in the ordinary gift, they are not (again, to the donee’s advantage, though for different reasons). 19 Daube 1955, reprinted in Daube 2000:811, uses the equivalent Roman law terminology: a usufruct. 20 Since the grant cannot, in this period, be revoked: T. B.B. 8:10; Yaron 1960:51–55. Later, it could (as in a modern will). See further Grunfeld 1987:103, and his recommended text at 109. 21 Cf. Daube 2000:811; Derrett 1970:108f. Scott 1989:110f. recognises that this does not apply to the prodigal, but fails to apply it to the older son. This misunderstanding continues where, at 120, he argues that the older son’s response veries that the younger son received a right of possession and disposition while the elder has only the right of possession.

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given to the older son as a matanat bari (rather than retained himself )22 the father was entitled to the income from such animals, but not to dispose of them to the prejudice of his son’s future interest.23 He has acted, as regards the fatted calf, as if he is still absolute owner, rather than simply having a life interest. The converse of this is the complaint of the older son that the father “never gave me a kid, that I might make merry with my friends”: this recognises that he could not unilaterally dispose of farm animals, to the prejudice of his father’s life interest.24 If this were all, however, we might indeed consider the older son to be rather mean-spirited, in common with much Christian interpretation.25 Is the older son not pleased to see that his brother is, after all, still alive? Does he too not wish to extend any welcome home? What is he afraid of ? Clearly, he regards the fatted calf as potentially (if I may so describe it) the thin end of the wedge. He fears that it is a harbinger of more to come, that the prodigal will indeed ingratiate himself with the father, to his own further detriment. This detriment does not, I think, consist primarily in prejudice to the future interest which the father has already given to the older son by the matanat bari or in the reduction of the father’s ultimate estate through the support accorded the prodigal after his return. Rather, the older brother fears that the prodigal will

22

Aliter, Derrett 1970:107f., who argues that “our father will by no means have prejudiced his own position, as the parable clearly hints. The way the servants run around him tells its own tale . . .” and therefore assumes that at the initial distribution, the father retained a third, and that the other two thirds were distributed in a proportion of two-thirds to the elder, one third to the younger son, following the law of primogeniture, so that the latter in fact got two-ninths. Daube 2000:814 also inclines to the view that the father had not in fact given away the rest of his property to the older son. But the text says that the father divided    . Of course, it is also possible that the fatted calf was after-acquired property, in which event the older son has different reasons to resent this disposal of part of his expectation. 23 Aliter, Derrett 1970:114f., who regards the calf not as an independent item of property, but rather as part of the prots (in Roman law terms, the fructus) of the estate. He quotes in support the latter part of the Mishnah regarding the right of the father to pluck up and feed the produce to whomsoever he pleases. A crop would certainly be regarded as fructus, as indeed would be milk and farm animals produced by breeding on the farm. Whether the fatted calf fell into this latter category appears doubtful. Bailey 1992:116f. also cites this Mishnah in support for the view that the father was fully entitled to slaughter the calf (without recourse to the older son). 24 Holgate 1999:229 is thus wrong in arguing that the older brother shows himself to be even more (mean and) covetous than his younger brother when he failed to use what he has been given, not even offering hospitality to his friends. 25 See, e.g. Holgate 1999:229 (infra, n. 126).

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indeed share, as an heir, in any future property which the father may acquire between now and his death. Was such a fear well founded? The answer must reside in the nature of the original grant made by the father to the younger son. We are told that in reaction to the original request of the prodigal: “Father, give me the share of property that falls to me”, the latter “divided his living between them”. This cannot in this context mean that the father divided everything he then had, and gave a matanat bari in half to each of the two sons. This would have defeated the object of the prodigal, which was clearly to go away with his expectation, in a form in which he could dispose of it immediately (as, indeed, he did),26 and without the encumbrance of any life interest on the part of the father.27 The original gift to the prodigal, then, was not a matanat bari, but rather an absolute and unconditional gift. It was, in one sense, an “advance”, in that it anticipated the interest which the father no doubt intended to pass to his younger son on his death. But such an advance, according to the Mishnah, was not taken into account in any nal distribution. The Mishnah already quoted continues in the following way (M. Baba Bathra 8:7(b)): If he left older sons and younger sons, the older sons may not care for themselves [out of the common inheritance] at the cost of the younger sons, nor may the younger sons claim maintenance at the cost of the older sons, but they all share alike. If the older sons married [and drew upon the common inheritance] the younger sons may marry [and draw in like manner]. If the younger sons said, ‘We will marry [on the same scale] as ye married [when our father was yet alive]’, they do not listen to them; for what their father had given them, he has given.

A clear distinction is made here between marriage expenses incurred before the death of a father, and after. If a man leaves sons both above and below the age of majority, the older sons are, in effect, trustees for the interest of the younger sons. If the older sons draw on the assets of the estate in order to get married, they must allow the younger sons,

26 The common interpretation of “gathered it in” (v. 13) is that he sold off his portion of the land: see Scott 1989:113 n. 4; Rohrbaugh 1997:152; Bailey 2003:101; Holgate 1999:140, stressing the moral connotations of the expression. 27 Aliter, Derrett 1970:107, who maintains that the father did not give the prodigal his share with permission to alienate it or dispose of it absolutely, citing Jerusalem Talmud Ket. IV:8. But this makes little narrative sense, unless we assume that the prodigal was intended to invest the money and live off the income.

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in their turn, to draw on the estate to the same extent. However, if the older sons had married before the death of the father, and the latter had made advances to them in relation to their marriages, then “what their father had given them, he has given”. These are immediate and absolute inter vivos gifts, which are not taken into account in the nal distribution.28 Despite those advances, the older sons are entitled to share with the younger sons the assets which the father leaves on his death. Yaron takes the view that it was possible to insert within an advance a clause excluding from the ultimate inheritance, thus modifying the rule of M. B.B. 8:7. He writes: “In the absence of a duty of collation it would be important to know whether a certain gift was meant to be in addition to the son’s legal share or as compensation. In each case the wording of the disposition would have to be investigated, and if, as might happen, the wording was not clear, this would give rise to doubts and litigation.”29 But the text of the parable provides no clue (other than the subsequent behaviour of the participants in the story) as to whether this was assumed to have been done; indeed, there is no suggestion in the text that the “advance” was incorporated in a written document.30 In fact, the prodigal’s language on greeting his father (encouraged, no doubt, by the father’s affectionate embrace) may perhaps imply that he does retain a legal entitlement, which he is prepared to renounce on moral grounds: “I am no longer worthy (   ) to be called your son”, v. 21. On the other hand, the father’s response to the older son, “all that is mine is yours”,31 appears (unless we take it as a

28 Or, as Yaron 1960:42–44 puts it, there is no duty of collation of this gift with the ultimate inheritance. 29 Yaron 1960:45. 30 Yaron also maintains that disinheritance through an advance (which he terms “dismission”) is mentioned in a discussion of the law of usucaption: a son cannot take possession of the goods of his father by this institution (˜azaqa), impliedly because he would become owner of them by inheritance anyway (M. B.B. 3:3), except in a case of “a son who has shared”: see Yaron 1960:43f., on T. B.B. 2:5 and B.B. 52a. Rengstorf 1967:25f. takes these sources out of context, as relating to ketsatsah. However, these texts, using the verb ˜alaq, might well be taken to refer not to dismission but rather to the matanat bari. Indeed, Yaron himself argues against interpreting the verb (as does Maimonides, Laws of Pleading 13:9), as indicating leaving the household; rather, he points out, it “means both ‘take a share’ and ‘give a share’ (retention of part by the giver being a necessary implication).” 31 The view (supra n. 22) that despite the original division the father retained a large part for himself, and that it is to inheritance rights in this that the prodigal is ultimately restored, overlooks the fact that neither the matanat bari nor the advance to the prodigal encompassed after-acquired property.

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disingenuous reassurance) to presuppose just such a disinheritance of the prodigal. Some New Testament scholars, seeking to emphasise the prodigal’s (immediate) restoration32 are sufciently embarrassed by this to seek to delete it as secondary, or impose on it some metaphorical meaning. Daube, too, maintains: “The words must be used in a loose sense, of the strong community of interests between the father and his elder son.”33 Such an interpretation must surely be a last resort. It does indeed sound as if the father is afrming the original disinheritance, contrary to the mishnaic law on advances. It is this issue of the ultimate distribution of the estate, taking account of after-acquired property, which the older son appears to be worried about. But is he justied in that concern? Whether or not the original advance to the younger son entailed a disinheritance, the older son has a grievance. In effect, he has been a partner with his father in the estate—a working farm—since the departure of the prodigal. The prodigal, indeed, had taken away a substantial part of the assets, and thus will have reduced signicantly the income of both father and older son. Moreover, the older son has remained at home, helping the father further to develop the farm, and quite reasonably does not see himself as in effect working for the future benet of his younger brother—or, at the very least, to support him.34 His expectation was surely that the younger brother would never return, having, in effect, been “seen off ” by the advance. If, in fact, the prodigal will in future be supported by his own labour, as a “hired servant”, and he will not share in the distribution of his father’s residual estate, then the older brother may indeed be judged somewhat mean-spirited. His reaction suggests rather that he does fear that the prodigal will ultimately take such a share. Should we, then, take the reassurance attempted by his father as indicating that the prodigal has no such expectation, i.e. that the advance operated in effect as a disinheritance? Two arguments have been advanced by Daube in favour of such a view: the rst, based on the rabbinic interpretation of the succession to Abraham, the second (advanced only tentatively, though taken up more

32

And its gurative—supersessionist—meaning: see further infra, s.IV. Daube 2000:814—despite arguing that the parable supports an early stage in Jewish law when advances did entail disinheritance. Apparently, Daube took the father’s remark to refer to the property subject to the matanat bari, rather than after-acquired property subject to the ultimate distribution. 34 Cf. Bailey 1992:125; Rohrbaugh 1997:159. 33

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substantially by some New Testament scholars) based on the institution of ketsatsah. I shall argue that the former is a far more solid basis for the argument than the latter. The Bible gives the following account of the succession to Abraham (Gen. 25:5–6): Abraham gave all he had to Isaac. But to the sons of his concubines35 Abraham gave gifts, and while he was still living he sent them away from his son Isaac, eastward to the east country.

Clearly, these sons to whom Abraham gave advances were not expected to return and claim a share in the ultimate inheritance. The rabbinic commentary on this passage in Genesis Rabbah is cited by Daube36 in support of the view that the initial grant to the prodigal did (contrary to the Mishnaic law of advances)37 exclude the prodigal from any further interest in his father’s estate:38 In the days of Alexander of Macedon the Ishmaelites came to dispute the birthright with Israel . . . Said Alexander of Macedon to them: ‘Who is the plaintiff, and who the defendant?’ Said the Ishmaelites: ‘We are the claimants, and we base our claim on their own laws. It is written, But he shall acknowledge the rstborn, the son of the hated, etc. (Deut. XXI, 17), and Ishmael was the rstborn.’ Said Gebiah, the son of Kosem: ‘Your Majesty! Cannot a man do as he wishes to his sons?’ ‘Yes,’ replied he. ‘Then,’ pursued he, ‘surely it is written, And Abraham gave all that he had unto Isaac’ (Gen. XXV, 5).’ ‘But where is the deed of gift [to his other sons]?’39 He replied: ‘BUT UNTO THE SONS OF THE CONCUBINES, THAT ABRAHAM HAD, ABRAHAM GAVE GIFTS.’ Thereupon they departed in shame.

According to this version of the Midrash, Alexander40 does indeed inquire about a wynb ˆyb qlyjç jwlyç rfç, a “document of sending 35 Mention having just been made of Keturah and her offspring by Abraham: Gen. 25:1–4. 36 Daube 2000:812f. 37 Daube 2000:811 acknowledges this, but suggests, at 814, as a means of disinheritance consistent with the Mishnah, precisely our combination of advance to the prodigal linked to a matanat bari to the older brother—the latter being designed to disinherit the younger not as a matter of law but rather of practice: “The elder also was given a share—so that on the father’s death there would be nothing left for the younger to inherit.” However, this analysis does not function as a disinheritance as fully as Daube maintains; he fails to take into account the possibility of after-acquired property. 38 Midrash Rabbah (LXI:7) on Gen. 25:6. Translation of Freedman 1939:II.545f. 39 Freedman 1939:II.546 n. 4 is in difculties here, and accepts that this rendering is conjectural. See further n. 42, infra. 40 Daube 2000:812 attributes this to the Ishmaelites, sed quaere. Cf. Neusner 1985: II.337.

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away which divided the estate between his sons” (Daube), and infers that such a jwlyç rfç41 excluded the donee from any future interest in the inheritance. Yet at rst sight the Jewish response is inadequate. It merely cites Gen. 25:6, but the latter makes no mention of a rfç. Clearly, however, this version of the midrash—whose textual basis is doubted42—takes it as self-evident that Abraham’s gifts were indeed accompanied by such a rfç, despite the fact that it is not mentioned in the biblical text. How so? In rabbinic law, a gift required kinyan, a recognised form of acquisition, and the form of kinyan depended upon the nature of the property. A shtar was a form of kinyan for immovable property. The Midrash thus appears to imply that Abraham in fact gave other land, outside Canaan, to the Ishmaelites (an appropriate response in the context of the claim being made before Alexander) and used a kinyan shtar to do so. Even so, how do we justify the inference that there was in fact a shtar? There are two possible answers, which may indeed prove relevant to the dating of the story. One is that the midrash inferred shtar by a process of elimination: there are three possible modes of kinyan of land: kesef, shtar and ˜azakah. Kesef is clearly inappropriate to a gift, and if the children of Keturah are being sent away to land elsewhere, there is (at least as yet) no ˜azakah on their part. So there must have been a kinyan by shtar. A second possibility is rather stronger. The Amoraim debate whether money is a sufcient kinyan for land, or whether a deed is necessary; Rav (Kidd. 26a) adopts the latter view, at least where there is a custom of writing deeds. If the argument in the midrash presupposes that view, then this points to a dating of the argument no earlier

41 Mirkin 1971:323 justies the equation of jwlyç rfç with hntm rfç on the basis of the use of shillu˜im (in the context of dowry) in 1 Kings 9:16. 42 The reading in t (the Yemenite MS) and d (the Venice edition)—the former, as Leib Moscovitz reminds me, based on the latter, which itself is frequently “hypercorrected” to resolve difculties. Theodor and Albeck 1965:666 adopt rwfqwl, on the basis of rwfq wl in [ (Kohut) and the k (München) and j (Epstein: Wien) MSS; cf. Sperber 1984:105, rejecting jwlyç rfç as an “internal gloss, with original word lost?” and noting rwfqzl in MS Vat. 60. Cf. Jastrow’s reading of ˆyfgl in Sanh. 91a, infra at n. 46). The meaning of Alexander’s question then becomes: if Isaac got a gift during his lifetime, who is the legatee (a question which is posed less evidently from the viewpoint of Jewish law), and the answer is that the children of Keturah also received (different) gifts before Abraham’s death (such unequal gifts during lifetime being permitted by the traditional halakhah: see commentary ad loc.). The version at Yalkut Shimoni 110 gives Alexander’s question as hrwfq ynbl ˆtwn awh ˆkyhw.

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than the Amoraic period, which is clearly too late to justify using it to interpret the parable.43 A stronger argument for the antiquity of disinheritance by making an advance may, however, be derived from a different, and probably earlier, version of this same debate44 before Alexander, found in the Babylonian Talmud, Sanh. 91a. This version is more explicit in taking the gifts to the children of Keturah as excluding them from any further inheritance, and at the same time provides a clue to the origins of the reading jwlyç rfç in the Genesis Rabbah version: On another occasion the Ishmaelites and the Ketureans came for a lawsuit against the Jews before Alexander of Macedon. They pleaded thus: “Canaan belongs jointly to all of us, for it is written, Now these are the generations of Ishmael, Abraham’s son; and it is [further] written, And these are the generations of Isaac, Abraham’s son.” Thereupon Gebiha b. Pesisa . . . pleaded against them. “Whence do ye adduce your proof ?” asked he. “From the Torah,” they replied. “Then I too,” said he, “will bring you proof only from the Torah, for it is written, And Abraham gave all that he had unto Isaac. But unto the sons of the concubines which Abraham had, Abraham gave gifts: if a father made a bequest to his children in his lifetime and sent them away from each other, has one any claim upon the other? [Obviously not.]”

hrba ˆtn hrbal rça yçglyph ynblw qjxyl wl rça lk ta hrba ˆtyw .tntm ?wlk hz l[ hzl çy (45wlk) hz l[m hz rgyçw wyyjb wynbl ˆyfga ˆtnç ba

ˆyfga (no doubt a corruption of ˆyfyg) is a hapax; Jastrow prefers to read ˆwfgl,46 a loan word for legatum. However, there are reasons to support the lectio difcilior. A clear connection, both substantive and terminological,

43 Daube 2000:813 also adduces in this context P.Oxy I.131 (6th or 7th cent. C.E.). 44 Noted but not discussed by Yaron 1960:44 n. 1. 45 Omitted in version at Yalkut Shimoni Gen. 110. 46 Jastrow 1950, s.v. ˆyfga and ˆwfgl, citing Yalkut Shimoni Gen. 110 (ˆyyfygl) and Tanh. Noah 14 (erratum for 20): see Buber 1885; Townsend 1989:50f., where Abraham is said to be the rst mentioned in the Bible for old age, a wayfarer’s inn, (hntm whz) afgylbw afgylbw . . . ˆynm (then citing Gen. 25:6); see also Sperber 1984:104, adopting ˆwfgl, albeit viewing hntm whz in Tanh. Noah as an internal gloss (thereby attesting to the unfamiliarity of afgyl). The reading is not supported by Dikdukei Soferim IX.253 ad Sanh. 91a, where ˆyfga or ˆyfyga (cf. MS. Munich: ˆyfyg) is strongly supported. I am informed by Leib Moscovitz that ˆyfyga occurs also in MS Florence II 1 9–7, according to a computerised collation of Babylonian Talmud MSS made by Prof. Shamma Friedman. He notes also that the Yemenite MS of BT Sanhedrin in Yad Harav Herzog, considered the best MS of this tractate, has: [ˆyfg] twnt?m? ´tkç ba.

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between divorce and disinheritance, is evident already in the Hebrew Bible. In a polygamous society, that is hardly surprising. If a man divorces one of his wives, he may wish, and if not will certainly be under pressure from any co-wives, to disinherit the children of the divorcee, as the story of Hagar and Ishmael clearly shows.47 The story of Jepthah shows the terminological link: Judges 11 1 2

3 4 5 6 7

Now Jephthah the Gileadite was a mighty warrior, but he was the son of a harlot (hnwz hça ˆb). Gilead was the father of Jephthah. And Gilead’s wife also bore him sons; and when his wife’s sons grew up, they thrust Jephthah out (wçrgyw), 2 and said to him, “You shall not inherit (ljnt al) in our father’s house; for you are the son of another woman.” Then Jephthah ed from his brothers, and dwelt in the land of Tob; and worthless fellows collected round Jephthah, and went raiding with him. After a time the Ammonites made war against Israel. And when the Ammonites made war against Israel, the elders of Gilead went to bring Jephthah from the land of Tob; and they said to Jephthah, “Come and be our leader, that we may ght with the Ammonites.” But Jephthah said to the elders of Gilead, “Did you not hate (tanç) me, and drive me out (ynwçrgtw) of my father’s house? Why have you come to me now when you are in trouble?”

Here, the terminology of tanç and ynwçrgtw, both characteristic of divorce, is used in the context of disinheritance of a son. Both divorce and disinheritance, in the biblical period, were informal social institutions, based on the practice of expulsion.48 In the more institutionalised context of rabbinic thought, the link between them survived, and since divorce entailed a get, so too was disinheritance thought to entail use of a document. The lectio difcilior ˆyfga in Sanh. 91a may thus explain 47 Thus, Sarah says to Abraham (Gen 21:10): “Cast out this slave and her son; for the son of this slave shall not be heir with my son, with Isaac.” No gifts are given by Abraham to Ishmael, but God promises in Gen 21:13: “And also of the son of the slave will I make a nation, because he is your seed.” Sperber 1984:104, in afrming ˆwfgl, viewed as a loan word (comparing in particular the form ˆwyfygl, found in the textual tradition of the Yalkut version, with  , though conceding that the latter is not found in Greek lexica), notes that readings such as ˆyfyg are “determined by the context which speeks (sic) of sending them away from one another.” But Judg. 11 (below) gives a clear biblical basis for the use of common terminology in divorce and disinheritance. 48 On the development of institutionalisation in this area, see Jackson 2007.

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the jwlyç rfç (also, apparently, a hapax) in the Midrash Rabbah version. And if this argument is correct, the fact that the connection between divorce and disinheritance goes back to the Hebrew Bible—along with the attribution of the rabbinic midrash to the period of Alexander—may well strengthen the argument that disinheritance by means of an advance represents a pre-mishnaic stage in the development of the halakhah. On the other hand, this is an aggadic source, carrying a highly signicant ideological message, and neither the ˆyfga nor the rfç jwlyç appear elsewhere in contemporary (or, so far as I can see, later) sources—whether aggadic or halakhic. Daube mentions further institutions whereby “in certain periods and regions at least, contrary to orthodox Talmudic law, a Jewish father could transfer a portion of his goods to a son, thereby ending any further claims of the latter”.49 Of particular interest (though our ultimate judgment is sceptical) is the institution of qetsatsah, “severance”, whose “precise import”, Daube remarked in 1955, “has never been investigated”. Thus, we read in the Palestinian Talmud: When a man sold his ancestral estate (wtzwja hdç ta rkwm da hyhç h[çb), the members of his family brought casks, lled them with parched grain and nuts, and broke them before the children; and the children collected them and said: ‘X has been cut off from his estate (wtzwjam ynwlp xqn).’ When he reacquired his estate, they did the same, and said: ‘X has returned to his estate.’ R. Jose be R. Bun said: Also he who married a woman unworthy of him,—his relatives brought casks, lled them with parched grain and nuts, and broke them before the children; and the children collected them and said: ‘X has been cut off from his family.’ When he divorced her, they did the same, and said: ‘X has returned to his family.’50

Daube’s hint was taken up by H.K. Rengstorf and Kenneth Bailey, both of whom argue (in different ways) for its relevance to the parable. Rengstorf saw qetsatsah as a public ceremony of severance of personal and material relations with the clan (Sippe) with whom the individual had come into “incurable conict”,51 and accepted that it was designed

49 Daube 2000:813. His other suggestion is a vow interdicting the son from the use of the property (qonam)—but there is no suggestion of any such vow in the parable. 50 Y. Kidd. 1.5 (translation of Yaron 1960:42); cf. Y. Ket. 2:10, Ket. 28b. 51 Rengstorf 1967:21–27, 70. See also Derrett 1970:115f., reviewing Rengstorf ’s argument but nding it inapplicable to the parable, on the grounds that there is no suggestion in the latter that the prodigal was originally penalised or ostracised by his family.

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particularly for its deterrent52 and pedagogic53 effect in relation to behaviour which was permitted but socially disapproved.54 He was particularly impressed by the reversibility of the institution, which he saw as reected in the “re-investiture” of the prodigal son,55 and his “complete restitution . . . to his former position of heir, including all rights and duties connected therewith.”56 However, as Yaron argues,57 there is no statement that ketsatsah entails disinheritance; indeed, reacquisition of the estate is regarded as the normal/desirable sequel. Moreover, there is no parallel in the ketsatsah ceremony to the restoration to the son of his former garment58 and the giving of the ring59 and shoes, all of

52

Rengstorf 1967:23. Rengstorf 1967:24, referring to the role of children in the ceremony. 54 Alienation of family property or taking an unsuitable wife: see further the rabbinic texts quoted in the text, below. The most recent study of ketsatsah (without reference to the parable), is that of Katz 2004:I.122–149, focussing on the Yerushalmi tradition, discussed infra at nn. 59–60. Katz too concludes (see esp. 130f., and cf. on Gulak at 123f.) that it was an early social custom, with no halakhic signicance for property relations: see further infra, nn. 66, 68. I am indebted to Leib Moscovitz for drawing my attention to Katz’s thesis, and making this section of it available to me. 55 Rengstorf 1967:71: “This restitution is—just like the — eÉÊÉÊh whose consequences it cancels out—an authentic legal act . . .” (Engl. Summary), 27–51. However, at 23 n. 46 he (correctly) stresses the informal (“pre-institutional”) nature of the institution, and at 26 characterises it as a usage with legal consequences, rather than a Rechtsakt in the strict sense. 56 Rengstorf 1967:71; cf. 50f. 57 Yaron 1960:42. In B.T. Ket. 28b, in the context of a disapproved marriage, the “cutting off ” is explained as a taboo against intermarriage with the offspring of such a marriage (cf. Rengstorf 1967:23 n. 49, on T. Kidd. 1.4): the members of the family declare: “Our brother So-and-so has married a woman who is not worthy of him, and we are afraid lest his descendants will be united with our descendants. Come and take for yourselves a sign for future generations, that his descendants shall not be united with our descendants.” 58 Rengstorf 1967:40–44, taking the  in    (Luke 15:22) to be temporal rather than qualitative: the cloth/robe which he formerly wore (denoting his status in the household); moreover, he takes the , like the ring, to be a symbol of authority, with royal associations (at 43 n. 103, comparing 1 Macc. 6:14f.). On the association with Joseph’s “coat of many colours”, see infra, 141. 59 Rengstorf 1967:29–39, viewed as a symbol of authority. Cf. Derrett’s view of the ring’s signicance, infra n. 81. However, this only indicates a tension in Rengstorf ’s argument. His basic position appears to be that the reversal of ketsatsah restores the heir to his former position (as heir): see, e.g., at 50f. That former position, in the parable, was not however originally one of pre-eminence. Yet Rengstorf seems to agree with Derrett that the giving of the ring does signify the creation of a status of pre-eminence. The same tension does not affect Derrett’s argument, since he does not seek to connect the ring in the parable with a reversal of ketsatsah. 53

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which are stressed by Rengstorf as indicating the prodigal’s complete (and immediate) restoration to his position as heir.60 A somewhat different argument is advanced by Bailey, who is impressed by the fact that the version of the tradition at Midrash Rabbah on Ruth 4:7 (vii.11) relates the institution to the particular offence of selling land to gentiles: [A] Formerly they used to acquire the title to a purchase by means of a shoe or sandal, as it is said, A MAN DREW OFF HIS SHOE, but later they acquired the title by means of kezazah. [B] What is kezazah? R. Jose b. Abin answered: If a man sold his eld to a Gentile, his relatives used to bring barrels full of parched corn and nuts and break them open in the presence of children, and the children would gather them and proclaim, ‘So-and-so is cut off from his inheritance.’ If it was returned to him, they used to say, ‘So-and-so has returned to his inheritance.’ [C] And likewise if a man married a woman who was not tting for him, his relatives used to bring barrels full of parched corn and nuts and break them open in the presence of children, and the children would gather them and proclaim ‘So-and-so is lost to his family.’ When he divorced her, they used to say, ‘So-and-so has returned to his family.’ [D]At a still later period they again acquired a title with a shoe or a sandal, A MAN DREW OFF HIS SHOE AND GAVE IT TO HIS NEIGHBOUR, and at a still later period they acquired title by payment of money, by a deed or by ˜azakah.

twyhl wrzj wl[n çya lç rmanç ldnsbw l[nmb ˆynwq wyh hnwçarb [A] hxxqb ˆynwq wyh ywgl whdç rkwm awhç ym lk ˆyba rb yswy rùùa hxxq ˆyd whmw [B] twqwnyth ynpb ˆyrbçmw yzwgaw twylq twalm twybj ˆyaybm wybwrq rzj yrmwa wyh hryzjh wtzwjam ynwlp xqn ˆyrmwaw ˆyfqlm twqwnythw wtzwjal ynwlp twybj ˆyaybm ybwrqh wyh wl tngwh hnyaç hça açwnç ym lk k [C] ˆyrmwaw ˆyfqlm twqwnythw twqwnyth ynpl ˆyrbwçw yzwgaw twylq twalm wtjpçml ynwlp rzj ˆyrmwa wyh hçrg wtjpçmm ynwlp dwba wh[rl ˆtnw wl[n çya lç ldnsbw l[nmb ˆynwq twyhl wrzj [D] hqzjbw rfçbw skb ynwq twyhl wrzj Nevertheless, Bailey argues that the prodigal was certainly not “cut off ” when he left, since at that stage he had not disposed of any ancestral

60 In particular, Rengstorf 1967:71 (cf. 28f., 45–50) argues that the shoes were “a legal symbol . . . connected with the right of tenure”. But this is based only on the reference to a shoe ceremony in Midrash Ruth (below), which (a) is presented as form of acquisition historically distinct from ketsatsah, and (b) refers to immediate purchase, which is remote from the supposed restoration (by gift) of rights in future property.

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land; rather, this form of social disapproval is relevant to the anticipated reaction to his return,61 when it becomes known that this is what he has done. However, if the prodigal was originally given his share in the land, but then “gathered it in”62 before he went on his travels, he impliedly sold it before his departure—to local people.63 The passage, moreover, presents substantial problems. It is internally inconsistent in the account it gives of the temporal place of ketsatsah, whether preceding or succeeding the ceremony involving a shoe.64 Moreover, the answer given by R. Jose b. Abin to the question what is ketsatsah hardly presents it as a mode of kinyan,65 which the context requires, but rather as a humiliation ceremony after the disapproved act (of sale or marriage) has been performed (by the normal means). If it was once a form of kinyan, its character is obscure,66 nor is it related in the Jerusalem Talmud to alienation to a gentile.67

61 Bailey 1983:167f. This reaction, for Bailey, is not simply that of the older son, but of the village, whose feelings the father seeks later to placate by the feast: see 169, 186f. At 1992:122 he is more ambivalent as to whether ketsatsah takes place before the prodigal’s departure or is anticipated on his return, reecting his acknowledgement of the priority of the Yerushalmi ketsatsah traditions (infra, n. 65). On the parallel Yerushalmi and Ruth Rabbah traditions regarding the repentant disinheritor/marryer, see Katz 2004:145. 62 Luke 15:13; see n. 26, supra. 63 As indeed Bailey accepts elsewhere: 1992:121. 64 Derived from Ruth 4:7: “Now this was the custom in former times in Israel concerning redeeming and concerning exchanging; to conrm a transaction a man took off his shoe, and gave it to his neighbor; and this was the manner of attesting in Israel.” 65 The sequence of modes in Midrash Ruth (supra) is found also in Y. Kidd. 1:5: skb twyhl wrzj . . . hxxqb ynwq twyhl wrzj . . . l[nmh tpylçb ynwq wyh hnwçarb

hqzjbw rfçbw

See further Gulak 1929:41f., dating this to the Second Commonwealth period. See also Albeck 1973:II.219: “The Jerusalem Talmud (Kid. 1:5) indicates other modes of kinyan with regard to immovables, one based on the removal of a shoe as mentioned in Ruth 4:7, and the other being kezazah, without any indication of the period when those modes were practiced.” See further infra, n. 66. 66 The nearest we get is an observation of R. Judah at the bottom of Y. Kidd. 5.1 (16a), immediately before the passage here quoted, that the goxel in Ruth 4 surrenders his rights to Boaz by ketsatsah. The meaning is far from clear, despite the explanation that follows. Though the root is not itself found in Ruth, the theme of “cutting off ” is present in 4:10, where Boaz rejoices that, as a result of the redemption, trky alw wyja [m tmh ç. Katz 2004:124–128, 130, 132, now argues strongly against the historicity of any connection with kinyan (and particularly against the views of Alon and Lifshitz that it originally referred to a form of kinyan by oral agreement). For his view of its original function, see infra, n. 68. 67 Acknowledged by Bailey 1992:121f., who accepts the Jerusalem Talmud’s version (citing here Y. Ket. 2:10) as earlier, though he argues that disposal of the proceeds of sale of the land to gentiles “adds insult to injury”.

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One might in any event be particularly hesitant to rely on Midrash Rabbah to interpret the parable, on grounds of dating. There is, indeed, an obscure reference to the institution in a tannaitic text: T. Ket. 3:3 says that one accepts the evidence of a man who says: “We ate at the ketsatsah of so-and-so.”68 But Bailey now adduces a text found at Qumran, the Testament of Kahat, dating from the late 2nd cent. b.c.e.69 As he quotes it: And now, my sons, be watchful of your inheritance (attwryb)70 that has been bequeathed to you, which your fathers gave you. Do not give your inheritance ( ˆwkttwry) to gentiles ( ˆyarknl), nor your heritage ( ˆwktwnsja) to violent men ( ˆyalykl), lest you be regarded as humiliated in their eyes, and foolish, and they trample upon you, for they will come to dwell among you and become your masters.71

Bailey takes this out of context and seeks to relate it directly to ketsatsah. But the continuation (“Therefore, hold fast to the word of Jacob, your father, and be strong in the Judgements of Abraham, and in the Righteousness of Levi and myself ”) indicates that “inheritance” is here being used metaphorically,72 rather than in Midrash Ruth’s literal sense of “If a

68 For the text and discussion, see Lieberman 1967a:63; idem, 1967:220f. The text is traditionally regarded as concerning the reliability of such a claim made by a minor. It is noteworthy that no other source suggests that ketsatsah involves some ceremonial eating: at most, the children may eat the nuts they collected. Rengstorf, 1967:23 n. 46, comments that even the Tosefta may reect a long-forgotten memory, and in arguing that the institution may go back to the time of Jesus, he observes (23 n. 47) that the Gospel of Luke retains many memories of Palestinian practices. Katz 2004:125, 128–30, now plausibly reconstructs the origins of the institution, on the basis of T. Ket. 3:3 and Ket. 28b, as concerning the eligibility of a family in the Second Commonwealth period (citing also Sperber 1978:152 n. 32 and 174) to eat terumah: they were barred from so doing if they practiced disinheritance and disapproved marriages, and social disapproval was made manifest by the ketsatsah ceremony—of which an adult could give evidence even if he had participated in it as a child or if his father had told him of it. He notes also at 148f. a variant in the Leningrad Firkovitz MS of Ket. 28b, where children are not involved in the ritual shouting of the formula, but rather the barrel is broken in the public road: thus what in the Yerushalmi is an internal family status is transmuted in the Babli into a public status. 69 See the discussion in Puech 2001:257–82. 70 attwry is described by Puech 2001:273, and earlier, in his preliminary edition, 1991–92:39, as “décalqué de l’hébreu hç(w)ry.” The Aramaic text is generally viewed as based on a Hebrew original. 71 Fragment 1, Col. 1, ll. 4–7. Translation of Eisenman and Wise 1992:150, quoted by Bailey 2003:102 (though omitting the clause “nor your heritage to violent men”). See also Puech’s edition and French translation. 72 The clause omitted by Bailey is rendered “or your heritage to assimilation” by Cook 1993:206.

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man sold his eld to a Gentile”, with which Bailey seeks to associate it. Indeed, Puech takes ˆwkttwry to refer to the priesthood—which should not be alienated to ( Jewish) “strangers”.73 The same view is taken by Cook, who takes the text as a whole as dealing with “the importance of keeping the priesthood and its duties and prerogatives pure”.74 But though these considerations undermine any argument that we can read the interpretation of Midrash Ruth back to the Second Commonwealth period, the metaphor does support the view that alienation of one’s inheritance outside the family, to ( Jewish) “strangers”, was regarded as entailing disgrace—the message of the ketsatsah passages in the Palestinian Talmud. Bailey may indeed be correct in interpreting the feast as an attempt by the father to placate his fellow-villagers, in the light of such disgrace.75 But this takes us no further on the principal issue: whether the original grant to the prodigal involved his disinheritance. In short, there is a possible argument, based primarily on the midrash in Sanh. 91a, for an earlier stage of the halakhah in which an advance to a son involved his disinheritance from any nal distribution.76 The parable may, on this view, provide supporting evidence of such an earlier stage in the development of the halakhah77—provided, at least, that such an interpretation is coherent with its theological meaning and gurative message. I do not, of course, seek to suggest that Luke or his audience were familiar with the (later) halakhic texts or the law in any technical sense, any more than a modern non-legal audience would be. But certain aspects of the law are so basic to social life that familiarity with them may be assumed. One is the difference between property subject to a gift (matanat bari ) and after-acquired property. In the absence of the modern conception of a will,78 this will have been taken for granted. Moreover, it will have been clear to the audience, not least from the

73

Puech 2001:273. Cook 1993:207, rendering the clause “do not give your inheritance to strangers”. 75 Supra n. 61, followed by Rohrbaugh 1997:157f., 161. 76 Such an disinheritance could be effected by other means—konam, or, on Yaron’s argument (supra, 121) an explicit term in the advance—but there is no hint in the parable that any such means were used. 77 Nor can we exclude the possibility that the social knowledge presupposed by the parable is that of a form of Jewish society which followed a divergent set of norms. 78 Often described as “ambulatory”, in that it covers all property in the estate at the time of death, and thus property acquired after the date of the will itself. 74

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nal exchange between the father and the older son, that the issue of ultimate inheritance remained unresolved. For even if the prodigal is indeed fully entitled ultimately to take his share in any property acquired by the father after the original division (the Mishnaic view), there was nothing to prevent the father from giving a further matanat bari to the older son and indeed making an appropriate shekhiv mera once on his deathbed.79 And if, conversely, the prodigal returned without any existing legal right to share,80 either immediately or on his father’s death, in property acquired since the original division, the older son might well fear that his father would later exercise his right to reinstate him.81 The older son’s reaction, as has been widely noted, is not recorded,82 and this is sometimes taken to imply that he remained unimpressed. We can understand his cynicism, whichever version of the law we adopt. A family arrangement which had originally appeared, with the prodigal’s

79

On this analysis, the father’s reassurance to his older son may thus have been a promise in relation to the ultimate distribution, rather than an afrmation of an original disinheritance, and the older son may well have regarded it as providing little guarantee. But even if we take his words as constitutive (“All that is mine is hereby yours”) rather than promissory, and as accompanied by the required kinyan, they would amount only to either a further matanat bari or an advance to the older son, neither of which would exclude the prodigal from a share in property of the father acquired thereafter. 80 Daube 2000:810 argues that otherwise the subsequent development—his distress at the loss of his goods, his throwing himself on his father’s mercy and the father’s generosity in responding—becomes unintelligible. Yet even if, in accordance with the mishnaic rule, he retained an entitlement according to contemporary halakhah, that same halakhah gave him no guarantee: on Daube’s own argument, the father, on the return of the prodigal, could have made a further matanat bari to the older son, effectively disinheriting the younger also from the after-acquired property acquired in his absence. See also Derrett 1970:108. 81 As indeed, some argue, he did. Daube 2000:814 asks how (on the traditional talmudic understanding) the father could “fully reinstall” the returning son, when he had already given the rest of his estate to the older son (not taking account of the issue of after-acquired property). He does however concede that the “text does not in so many words speak of a reinstatement. Indeed, to the elder son’s protest the father replied that “all mine is thine”; which sounds like an assurance that the elder would not have to share his rights as owner with the younger.” Also difcult to reconcile with the father’s reassurance to his brother is the view of Derrett 1970:113, that the penitent prodigal immediately replaces his older brother as the future leader of the family, taking the ring in v. 22 to be a signet ring, conferring on the returnee the authority as his father’s deputy. Cf. Danker 1988:277, suggesting moreover that the ring “conrms full sonship and right of inheritance”. Derrett also argues, at 122, that when the servants put sandals on the returning prodigal’s feet “they acknowledge him as their master . . . The reinstatement of the prodigal is the preliminary to his being a leader, the role from which his older brother is now excluded at least for the while, if not permanently.” 82 E.g. Rohrbaugh 1997:162; Bailey 2003:98, 115.

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departure, clear, has now become, with his return, an unresolved problem (a Rumsfeldian “known unknown”). III I turn now to the theological message of the parable: it is clearly concerned with the relationship between (the father’s) forgiveness (which is clear and unconditional), and the son’s repentance83 (which is ambiguous, at best). Was the returning prodigal sincere in his confession and repentance? The narrator, so it seems to me, comes close to implying that he was not:84 the prodigal is depicted in vv. 17–19 as calculating that if he goes home to his father, and confesses his sin (a crucial part of the Jewish concept of teshuvah), then he will at least be taken back into the home, and receive basic support: “But when he came to himself he said, ‘How many of my father’s hired servants have bread enough and to spare, but I perish here with hunger! I will arise and go to my father, and I will say to him, Father, I have sinned against heaven and before you. I am no longer worthy to be called your son; treat me as one of your hired servants.’ ” We need not go beyond this, for theological purposes, in reconstructing his material ambitions in returning home. In order to construe this as a sincere repentance, we have to interpret “when he came to himself ” (  !" #$% ) as “when he saw the light”85 rather than something like “when he came to his senses”.86 For sure, the latter is not the normal Christian reading.87 But not even the context of the parable in Luke (on which reliance is often

83

“Repentance” in Hebrew is teshuvah, literally “returning”. Cf. Bailey 1983:173–80; idem, 1992:130–33: “he was ‘looking out for number one,’ namely himself. Surely his stated motive is the key to his intentions,” and comparing the prodigal’s “I have sinned” with that of Pharaoh in Exod. 10:16; idem, 2003:103–107; Scott 1989:115f.: “To term this development repentance is to turn the narrative into a theologoumenon. After all, his stomach induced his return”; Rohrbaugh 1997:143, 155. 85 As, impliedly, by Derrett 1970:121f. 86 See Bailey, infra n. 89. Rohrbaugh 1997:155 endorses the suggestion of Via 1967:108, that he remembered his past and thus his own identity. 87 E.g., Derrett 1970:121: “There cannot be any doubt that the younger brother, who has undergone a rebirth, is regarded in the parable as rededicated to a better life.” Often, the prodigal’s sincerity is assumed without discussion, e.g. Sanders 1987:108; Holgate 1999:207. 84

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placed)88 speaks unambiguously for a sincere repentance. The parable follows immediately on two shorter parables, all of them designed to justify to the Pharisees Jesus’ consorting (and eating) with “tax collectors and sinners”.89 But neither a lost and found sheep nor a lost and found coin is the strongest metaphor for a sincere penitent.90 Nor are we told that the sinners and tax collectors actually repented before (or when) Jesus received and ate with them. True, the preceding parables conclude: “Just so, I tell you, there will be more joy in heaven over one sinner who repents than over ninety-nine righteous persons who need no repentance” (Luke 15:7); “Just so, I tell you, there is joy before the angels of God over one sinner who repents” (Luke 15:10). Yet this in itself says nothing as to the timing of such (impliedly sincere) repentance: the very choice of sheep and coin precludes it. On the other hand, when we reach the parable of the prodigal, that issue does arise: even if the prodigal arrived home as a calculating, insincere penitent, that does not exclude the possibility that the father—who, it has been noted,91 makes no attempt at all to test the returnee’s sincerity—immediately forgives him,92 anticipating that ultimately, and partly as a result of his very reintegration within the family, he will indeed sincerely repent of his previous misdoings.93 Jewish thought supports the view that repentance is a process rather than an event. Philo notes that parents often “do not lose thought for their wastrel (&' ) children but . . . lavish their kindness on the wastrels more than on the well behaved . . . In the same way, God too . . . takes thought also for those who live a misspent life, thereby giving them time for reformation, and also keeping within the bounds His own merciful

88

E.g., Sanders 1969:438; Goulder 1989:II.604f. Cf. Bailey 1992:148; idem, 2003:111, arguing that the point of the parable is that Jesus, like the father in the parable, goes out of his way to seek to induce sinners to repent, by receiving them and planning to eat with them. For a christological version of this argument, based on Rom. 5:8 and Eph. 2:13 (interpreting Isa. 57:19), see Bailey 1992:150. 90 Cf. Bailey 1992:129–31, comparing Ps. 23:3. 91 Scott 1989:117. Perhaps the father is portrayed as taking a public stance of assuming that the prodigal is penitent, while privately he has his doubts. His nal response to the older brother may be taken as a hint of this. 92 Even before the prodigal has a chance to deliver his prepared speech: Bailey 2003:109. 93 Bailey 1992:134f. sees this as an implication of the prodigal’s intended proclamation to the father that he is   (in effect: not for the moment but hopefully in future) worthy. 89

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nature . . .”94 The following late midrash has been cited95 as a parallel to the reception given by the father to the returning prodigal: A king had a son who had gone astray from his father a journey of hundred days; his friends said to him, “Return to your father;” he said, “I cannot.” Then his father sent to say, “Return as far as you can, and I will come to you the rest of the way.” So God says, “Return to me, and I will return to you.”

It is not, I suggest, inappropriate to compare contemporary conversion procedures prompted by marriage. The prospective non-Jewish spouse of a Jew or Jewess may present him/herself to a Rabbi for conversion. Despite the fact that, in principle, the “ulterior motive” of marriage is a bar to conversion,96 the process will begin, the test being whether the prospective convert is sincere at the end of the process (i.e. whether they would then convert even in the absence of marriage). For the moment, the penitential status of the prodigal remains unresolved. Once it is resolved, so too will be his ultimate inheritance rights. If so, what Jewish-Christian issue was at stake in the parable?97 A number of possibilities have been suggested. Carlston (who sees the parable as going back to Jesus) argues that the emphasis is on the father’s love for the penitent sinner, apparently implying that even a non-penitent sinner may be forgiven.98 Derrett suggests that the issue may have been whether repentant sinners were to be reintegrated on that basis alone, or whether they required a penance before they were

94 De providentia II.4–6 (Loeb ed. translation, emphasis supplied). I am indebted to Gerald Downing for drawing my attention to this passage. 95 Pesikta Rabbati 184b–185a, quoted by Scott 1989:117, from Monteore and Loewe 1938:321. 96 See “Proselytes”, Enc. Jud. 1973:XIII.1183; Berkovits 1989:278f., citing Maimonides, Isure Bixah 13:14, Shul˜an Arukh, Yoreh De{ah 268:12, and Bet Yosef, ibid., for the proposition that “the Beth Din retain discretion to accept an applicant’s ultimate sincerity even where the initial motivation was an ulterior one.” 97 Scott 1989:124f. quotes Monteore for the view that the rst part of the parable “teaches that whenever the sinner repents, God receives him gladly. Nothing, by the way, can be more Jewish and Rabbinic than this.” He adds: “This point of view should warn those who claim that in the rst part is the good news of the gospel. Only a Christian arrogance prevents one from seeing this as Jewish.” 98 Carlston 1975:385: “. . . the parable itself is not concerned to show that sinners must repent. Even in part I the stress is rather on the father’s love for the penitent sinner, which is a different motif. In addition, if (as many hold) the older brother is really a sinner because of his self-righteousness, what is missing in the story, viz., a call for his repentance, is the one element in the whole complex that is unequivocally Lucan.”

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forgiven, attributing the latter position to the Pharisees.99 If we take the parable as originating with Luke,100 it may be viewed as opposing Jewish-Christian hostility to the recruitment of gentile converts.101 But the answer may be rather more simple and unsophisticated: the complaint against the “Pharisees”, as often elsewhere, is not erroneous doctrine, but rather hypocrisy, here in adopting a “self-righteous”, stand-ofsh attitude to the less observant. Indeed, contemporary Jewish Orthodoxy still exhibits considerable variation in attitudes “on the ground” towards ba{alei teshuvah. In one respect, however, this chapter of Luke might be thought to diverge from Jewish teaching. The conclusion that the penitent is regarded as in some sense “superior” to the righteous is sometimes derived from the conclusion to the parable of the lost sheep: “. . . there will be more joy in heaven over one sinner who repents than over ninety-nine righteous persons who need no repentance” (Luke 15:7). But “more joy in heaven” hardly means that the repentant sinner is morally better than the ever-righteous. Rather, the message is that the latter should not “exalt himself ” and claim his own superiority over the repentant sinner or discourage the latter, as may be seen from the parable of the Pharisee and the tax collector.102

99

Derrett 1970:122, citing John 8:39, 10:26–30 for the joy of many Jews that Jesus was prepared to recognise them as sons of Abraham without any costly, humiliating, or compromising preliminaries. 100 With Goulder 1989:II.614. Carlston 1975:368 notes that the literature includes three radically different accounts of the literary history of the parable: that it originally consisted only of the rst part, and Luke added the second (Sanders); that the whole thing belongs to Luke (Schottroff ), that the whole parable comes from Jesus ( Jeremias). 101 Sanders 1987:108. This, he goes on to argue (at 314–19), prompted in Luke a counter-view, that the Church should consist only in gentile Christians (cf. Luke 5:31f.: “Those who are well have no need of a physician, but those who are sick; I have not come to call the righteous, but sinners to repentance.”) But certainly, no such message can be read into the conclusion of the prodigal parable. 102 Luke 18:9–14: He also told this parable to some who trusted in themselves that they were righteous and despised others: “Two men went up into the temple to pray, one a Pharisee and the other a tax collector. The Pharisee stood and prayed thus with himself, ‘God, I thank thee that I am not like other men, extortioners, unjust, adulterers, or even like this tax collector. I fast twice a week, I give tithes of all that I get.’ But the tax collector, standing far off, would not even lift up his eyes to heaven, but beat his breast, saying, ‘God, be merciful to me a sinner!’ I tell you, this man went down to his house justied rather than the other; for every one who exalts himself will be humbled, but he who humbles himself will be exalted.”

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Nothing in the last section, on the nature of the teaching regarding repentance, depends upon the fact that the competing protagonists in the parable are an older and younger brother. But we cannot ignore that fact, or the signicance of its obvious intertextualities with the Hebrew Bible,103 where we encounter some complex interactions between law, social practice, narrative and covenantal promise. Before considering its implications for the parable of the prodigal son, it may be useful briey to review these interactions. The “legal” material consists primarily in two laws, one in Deuteronomy, the other in the Priestly Code. Deut. 21:15–18 provides a law of primogeniture, conceived to operate in the context of what today we would call “testate” succession, the division of an estate by the “will” of its owner, during his lifetime, while Num. 27, the law pronounced in the context of the complaint of the daughters of Zelophe˜ad, provides for what we would today call the law of intestate succession. However, both of these laws have close literary relationships to narratives. Num. 27 follows the census taken of the Israelites before the entry into the promised land (Num. 26), with a view to the division of the land along tribal lines, and in that context the family situation of Zelophe˜ad is already mentioned (Num. 26:33). Indeed, the complaint of the daughters relates to the disappearance of the “name” of their father from (impliedly) the land. It is thus not necessary to infer that the original point of this law extended beyond succession to land (which is one way, incidentally, of “reconciling” the fact that Job included his daughters along with his sons in succession to his estate).104 But if the book of Job indicates that it was possible to override, by inter vivos gift, the law of Num. 27 (preferring male to female heirs), we may infer that it was also possible, by inter vivos gift, to override the law giving a

103 For a wider-ranging (perhaps too wide-ranging) account of intertextualities with the younger brother theme, see Derrett 1970:116–119. On the theme in the Hebrew Bible and the ancient Near East, see above all Greenspahn 1994. 104 Job 42:12–15: “And the Lord blessed the latter days of Job more than his beginning; and he had fourteen thousand sheep, six thousand camels, a thousand yoke of oxen, and a thousand she-asses. He had also seven sons and three daughters . . . And in all the land there were no women so fair as Job’s daughters; and their father gave them inheritance among their brothers.”

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double portion105 to the eldest son. And indeed, the narrative of the succession to Jacob exemplies this. Deut. 21:15–17, as is commonly noted, presupposes the basic institution of primogeniture, and addresses a possible problem in its application: If a man has two wives, the one loved and the other disliked, and they have borne him children, both the loved and the disliked, and if the rst-born son is hers that is disliked, then on the day when he assigns his possessions as an inheritance to his sons, he may not treat the son of the loved as the rst-born in preference to the son of the disliked, who is the rst-born, but he shall acknowledge the rst-born, the son of the disliked, by giving him a double portion of all that he has, for he is the rst issue of his strength; the right of the rst-born is his.

The main concern here is very specic: if a man wants to discriminate against his oldest son, and not give him the double portion (which clearly he is legally entitled to do), he should not so discriminate merely because he has a (relative) dislike for the mother of the older son, as against the mother of the son he chooses to prefer.106 The practice (or possibility) against which Deuteronomy protests is in fact exactly what Jacob did (as Carmichael has, to a large extent, maintained):107 in Gen. 49:2–4, he refuses to give the “birthright” to Reuven, his oldest son, the son of the non-preferred Leah; instead, he gives what amounts to a double portion108 to Joseph, the son of the preferred wife, Rachel. He does this by adopting the two sons of Joseph, Ephraim and Menasseh (Gen. 48:5: “Ephraim and Menasseh shall be mine, as Reuben and Simeon are”), and giving them portions along with Joseph’s brothers instead of Joseph.109 Thus, Ephraim and Menasseh appear as two of the twelve tribes of Israel, taking the place

105 A number of scholars (most recently, Blenkinsopp 1997:72–74), have maintained that the “double portion” of the eldest son should rather be rendered “two-thirds” of the estate (arguing from Zech. 13:8). For the history of this view, and a convincing refutation, see Davies 1986. For other proposals, see Knoppers 2000:116f. 106 Cf. Greenspahn 1994:54–59. Greenspahn goes further, in arguing that there was no legal right of primogeniture at all, the bekhor being a status assigned by the father (“even if the eldest sons were most likely to achieve its benets”: at 59). See also Greenspahn 1996:75f. Contra, Knoppers 2000:116f. 107 Carmichael 1982. 108 Cf. Hertz 1929:397 (on Gen. 48:5); Knoppers 2000:119. 109 Aliter, recently, de Hoop 2004:477f., taking this to erode the position of Joseph (despite the fact that it is Joseph who takes the initiative, by taking Menasseh and Ephraim with him to Jacob’s death bed, no doubt anticipating their receiving a blessing).

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of Joseph. This is exactly the way in which the “double portion” is conceived to operate, as it is spelled out in later Rabbinic sources. But Jacob has applied it to the benet of a son who is not the oldest, but whose mother was preferred to that of the oldest. Of course, this is not the only example of the preference of a younger son to an older son in the patriarchal narratives;110 Isaac is preferred to Ishmael, Jacob to Esau.111 There is, however, a vital difference in the operation of this preference between the successions to Abraham and Isaac on the one hand, Jacob on the other. In the two former cases, the older son (Ishmael, Esau) is excluded entirely. In the latter, the older son receives a “normal” share in the inheritance; he is excluded only from the “double portion”.112 This will prove of importance for our understanding of the parable of the prodigal son, since it is the succession to Jacob, and particularly the role of Joseph in that narrative, which it evokes.113 In fact, both the laws and the narratives are closely related to the larger theological theme of the Pentateuch as a whole (if not of the entire Hebrew Bible): the working out of the promises, or covenants, with Abraham. God promised Abraham two things: on the one hand, that his descendants would be as numerous as the stars of the heaven,114 the sand of the seashore115 or the dust of the earth;116 on the other,

110 This phenomenon has been well noted in the literature, as is reected in the titles of two monographs: Greenspahn, When Brothers Dwell Together. The Preeminence of Younger Siblings in the Hebrew Bible (1994); Syren, The Forsaken Firstborn (1993). 111 When the Church seeks to identify itself with the younger brother, and to see Israel as (the rejected) older brother, it frequently uses Esau as the gure of Israel. See Scott 1989:124f., on the Pauline sources, and the lack of t with the fate of the older son in the parable; Boyarin 1999:3, on Tertullian. 112 Despite this, Bailey 2003:121–94 argues for parallels with the story of Jacob’s exile and return in Gen. 27:1–36:8: Isaac unintentionally gives Jacob his “primary blessing”, whereupon Jacob has to ee to a “far country”; on his return, he (eventually) revisits Isaac, after which Isaac dies and Esau, the older brother, departs. Many (but not all) of Bailey’s parallels on matter of detail are worthy of study. We are not, of course, required, for these purposes, to limit ourselves to a single narrative as a source of intertextuality. Nevertheless, the difference between the excluded Esau and the non-excluded older brother of the parable is surely signicant for the underlying theological message. 113 Infra, 141f. My colleague, Dr. Todd Klutz, points out that the only explicit New Testament invocation of the Joseph story is also in Luke-Acts: Acts 7. 114 Gen. 15:5, 22:17, 26:4. 115 Gen. 22:17. 116 Gen. 28:14.

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that his descendants would inherit the promised land.117 However, we very quickly encounter a real tension between these two promises: the question arises as to which descendants of Abraham inherit the promise of the land. In almost every generation, there is an exclusion and/or a preference.118 Of course, the historian may wish to see many of these literary sources as reecting the politics of the periods of their authors, and it is not difcult to identify in the older/younger brother theme the rivalry between the Northern and Southern kingdoms, the former represented, par excellence, by Ephraim.119 The principal intertextualities of Luke’s prodigal are with the story of Joseph,120 and not simply as a younger brother who was lost to his family—as a result, at least in part, of his own arrogance and overweening behaviour—but who later (after attaching himself to a rich foreigner in the context of a famine) was found and restored (albeit that the material relations between this lost son and his family turn out to be the reverse of those in the New Testament). In Luke, the rst thing which the father orders done, on the return of the prodigal, is: “Bring quickly the best robe”—an allusion, perhaps, to Joseph’s “coat of many colours”,121 which itself has been seen as a leadership symbol.122 For we may recall that in Gen. 37:3 the observation that “Now Israel loved Joseph more than any other of his children, because he was the son of his old age” immediately precedes the notice that Jacob himself made the coat for him. Moreover, Joseph certainly was, in the eyes of Jacob, rst (shown to be) dead, and then restored to life.123 Indeed, the

117

Gen. 15:7, 17:8, 26:3, 28:13. It is this, I have argued, that generates the series of “covenant renewals”: see Jackson 2000:ch. 9. 119 Even as between Ephraim and Menasseh, Jacob signals a priority to Ephraim, the younger brother: Gen. 48:14–19. Greenspahn 1994:139–60 looks rather to the dynastic quarrels within the Davidic household. See also Mandolfo 2004:454–57. For a review of approaches to the problem, see Fox 1993:46–68. 120 Cf. Goulder 1989:II.611f. Other aspects are stressed by Derrett 1970:120: “He was virtually exchanged for sandals, so the mention of sandals is appropriate. The rejoicing of the father resembles that of Joseph himself and of his own father.” 121 Cf. Derrett 1970:118, who adds the ring (taken to be a signet ring) as a parallel. On this, see further supra, n. 58. 122 Hertz 1929:310 (supporting the translation from the LXX, Targum Yonatan and Kimchi): “We now know from the painted Tombs of the Bene Hassain in Egypt that, in the Patriarchal age, Semitic chiefs wore coats of many colours as insignia of rulership.” 123 Gen. 37:31–33, which Daube 1947:4–5, 8–10 showed to reect the law of the shepherd proving the loss of a sheep to a wild animal by displaying its carcass: Exod. 22:12. 118

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rst thing that Joseph does, when presented with his youngest brother, Benjamin, is to order the slaughter of animals for a feast.124 And Joseph, the younger son, did, as we have seen, ultimately receive the “double portion”. The story of this double portion served to legitimate the position of Ephraim in the Northern Kingdom against that of Judah in the South. Against this background, we may argue that the relationship between the older brother and the prodigal son is intended to convey a message about the relationship between historic Israel and the new church. For it would not have been necessary to introduce the theme of sibling rivalry in order to generate a parable concerned merely with the jealousy of the righteous at the religious re-integration of sinners. The prodigal, on this reading, is indeed in line (despite the father’s reassurances to his older brother) to receive what we may non-technically describe as a “double portion”—both the original advance and his ultimate (possible) share in the distribution of the father’s after-acquired property. The prodigal, then, is a gure of the new Israel,125 the younger brother who, like those of the patriarchal narratives, will ultimately return from his pagan eshpots and inherit the promise. This is not to suggest that the older brother is undeserving126 (a theme which is not absent from the Hebrew Bible either), though there may be a hint here of the debate relating to salvation through works.127 124 Gen. 43:16: When Joseph saw Benjamin with them, he said to the steward of his house, “Bring the men into the house, and slaughter an animal and make ready, for the men are to dine with me at noon.” 125 Derrett 1970:119 observes that the Church saw the younger brothers of Jewish biblical history as ‘types’ of Jesus. 126 Though some have gone to extreme lengths to make him so. Scott 1989:120 sees a violation of the 4th Commandment: by staying out of the feast he fails to honour his father. Holgate 1999:229 lists the following aspects of the elder son’s meanness: his failure to protest at his father’s division of his living at the start of the parable and his acceptance of a share; later, his failure to use what he has been given, not even offering hospitality to his friends (but this neglects the limitations on his rights, as holding a matanat bari: see s.II, supra); his refusal to join in the celebrations (cf. Bailey 2003:114, 1992:171f., viewing this as “an unspeakable public insult to the father”; and arguing that the father assumes the role of a suffering servant: 1992:173, cf. 191); his anger with his father, neglect of his friends, and failure to love his brother. Indeed, Bailey 1992:182 points to a series of parallels between the behaviour of the two sons. See also Rohrbaugh 1997:160. 127 Bailey 2003:114: “. . . . grace has been offered and accepted rather than the requirements of the law being demanded and met by the sinner.” Cf. 1992:153. Derrett 1970:124f. links it with Gal. 4:21–5:1, where the distinction between the (older) children of (the slave) Hagar and the (younger) children of (the free) Sarah is correlated with a covenant of law on the one hand, of freedom and promise (#) on the other:

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How, then, does the parable conceive of the relationship between historic Israel and the new church, if we pursue this line of argument? It certainly falls short of both supersessionism128 and triumphalism. It seems to proclaim a pluralist message:129 the father may indeed seek to reassure his older son that his merited, privileged position is not threatened, while at the same time extending love and welcome to the sinner. Recall that the stated aspiration of the prodigal son, in deciding to come home, was only to be treated “as one of your hired servants” (though he is not recorded as having repeated that when he actually met his father). Perhaps, then, the father’s approach to the not-yet penitent sinner130 is pragmatic: we will take him in, and see how he gets on; only if later he is seen genuinely to repent will he actually inherit a share of the Kingdom?131 Perhaps, indeed, this is a response132 to Christian Pharisees, who maintain that conversion requires circumcision.133 Luke

“. . . the Pharisees and others who placed their entire trust in the Torah are enslaved to a covenant which was none of their making. The Church is the younger brother, chosen by God, heir to the promise, and mocked by the elder brother as Isaac was by Ishmael . . . thus the Church may have followed the younger-brother pattern, and seen the elder brother of the parable as the synagogue. This left the Pharisees and other adherents of the Torah still in possession of their rights under the covenant, for what that was worth, since God’s covenant could not be broken: but they would live under rebuke, not enjoying the forgiveness which the father of the parable lavished on the younger brother.” See, however, Carlston 1975:385f., who maintains a strong distinction between the Lukan and Pauline positions. 128 Cf. Downing’s interpretation of Luke’s attitude to the law: 1988:148–58. 129 Cf. Bailey 1992:189, 192. 130 See Bailey, supra n. 89. 131 Derrett 1970:114 (and see references in n. 4) notes a retelling of the story of the prodigal son by Buddhist scholars a century or more afterwards, in which the prodigal is carefully tested to know whether he is t to enjoy the wealth he can claim. 132 Whether it is that of Luke is another matter. Pace Sanders 1969:438, who takes the second part of the prodigal parable (along with the end of that of the Rich Man and Lazarus: Luke 16:19–30) as strong anti-Pharisee polemic, which Luke added to earlier material, it would appear too favourable (for Luke) to the older son. Cf. O’Rourke 1972:433, concluding: “One should note that the Lukan parable states that the elder son has a special relationship to the father; thus the anti-Pharisaic or anti-Jewish overtones are not strong.” Some seek to rewrite both the behaviour of the older son and his father’s response to it so as to produce conformity with the rejectionist view. An extreme exemplication of such rewriting is found in Holgate 1999:235, who argues that the absence of any hint at the end of the parable that the father’s appeal is going to change his elder son’s attitude is in accordance with the Peripatetic view that meanness is hard to cure, gets worse with age, and is therefore more serious than prodigality. 133 Acts 15:5: “But some believers who belonged to the party of the Pharisees rose up, and said, ‘It is necessary to circumcise them, and to charge them to keep the law of Moses’.” For later evidence of a Christian group sympathetic to the Pharisees, see Boyarin 1999:29; Baumgarten 1992:41f., on the Pseudo-Clementines.

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offers a diplomatic pause: let us not alienate converts by radical demands, but let us see how they get on and decide later whether they are to be fully integrated as successors to the covenantal promise. Such an approach certainly entails no rejection of the older brother—or those he is taken to represent. Against this, Sanders sees in the parable a more radical, supersessionist claim, more in line with what he takes to be Luke’s general Tendenz.134 There is, he argues, a serious doubt over whether Luke considers it possible for any Jew to be converted to Christianity after the end of Acts, “for the note on which Luke closes is the exclamation point to his two-volume proof that Jews are inherently unable to understand their own scriptures and are routinely hostile to the purposes of God”.135 The prodigal, in seeking an initial voluntary136 disinheritance in exchange for immediate gains, appears to symbolise the sinner who cuts himself off from God but later (provided we take him to be sincere) repents and is forgiven. On that model, the prodigal is a gure of the new(er) Israel in the form of gentile137 Christianity, giving up its idolatrous ways which had distanced it from the Father.138

134 Sanders 1987:317 argues that Luke responds to an identity crisis within gentile Christianity—provoked by Jewish rejection of Jesus while Jewish-Christians try to Judaise the church—by attacking both without distinction. He concludes that for Luke the world will be much better off when “the Jews” get what they deserve and the world is rid of them. Aliter, Weatherly 1994. 135 Sanders 1987:319. But see Marguerat 1994, who, while broadly accepting this, nevertheless seeks to account for elements of continuity with Judaism in Luke. 136 In conformity with the narrative, where it is the younger son who takes the initiative. Some have seen here echoes of the law of the stubborn and rebellious son in Deut. 21:18–20, which follows immediately after that of the law on primogeniture, and so may have overtones of disinheritance. However, the prodigal’s “loose living” (the precise meaning of which is debated: see Bailey 1992:122–24; 2003:102f.; Rohrbaugh 1997:153, takes it to mean “wastefully”, without any necessary connotations of immorality) appears in the parable only after his departure from the family home. 137 Much of the legal analysis here suggested would also be meaningful to a gentile audience, in that the matanat bari appears to have been based on the Hellenistic (  ) disposition. See further Yaron 1960:26f., 46f. 138 The prohibition of idolatry, we may recall, was one of the Noahide commandments, which Jewish tradition held had originally been revealed to Adam: Sanh. 59b, Gen. Rabb. 34; see further Schwarzschild and Berman 1973:XII.1189–1191. I am indebted to my colleague, Philip Alexander, for indicating this possible interpretation. Interestingly, idolatry is not explicitly included in the list at Jubilees 7:20, but honouring father and mother is. Acts 15:20 refers to four commandments addressed to non-Jews, “. . . that they abstain from pollutions of idols, from fornication, from things strangled, and from blood”—the only list, Berman observes, that bears any systematic relationship to the set of religious laws which the Pentateuch makes obligatory upon resident aliens (the ger ha-gar and ezra˜).

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Indeed, some medieval theologians saw the restored  as a symbol of Adam’s original loss of innocence.139 V This paper has argued that the legal, theological and literary problems of the parable all benet from the light which may be cast upon them from their Jewish background. R.D. Aus, however, has gone further, in suggesting that the story itself may originate in a Jewish oral folklore tradition,140 which is also reected in the following story about the rise to eminence of R. Eliezer b. Hyrcanus.141 Eliezer’s father had a farm, and Eliezer worked as a plowman. But he wanted to study Torah. His father said to him “You are 35 years old, and you want to study Torah? Go, instead, and take for yourself a wife and beget children and send them to school.” He was sad for three weeks until Elijah appeared to him. He said to him: Get up and go to Ben Zakkai in Jerusalem. Eliezer started to study with (R. Yo˜anan) Ben Zakkai. But he was broke. He spent eight days without eating, to the point that his breath became bad. As a result, he was expelled from the Yeshivah. He sat down and cried. Ben Zakkai asked why. He answered: Because you sent me away from you the way one sends away someone aficted with sores. Ben Zakkai asked him: Whose son are you? Eliezer answered: the son of Hyrcanus. Ben Zakkai said to him: You are a son of the nobles of the world and you did not inform me? Today you will eat at my house. [One version says that he arranged a “banquet” (mishteh gadol ) for him.] Meanwhile, Eliezer’s brothers complained to their father: “See what your son Eliezer did! He abandoned you, went off to Jerusalem, and eats there ‘force-fed meat . . .’ See what a difference there is between us and your son! We risked our lives for you and did not abandon you, but he did not come to look after you in your distress. Now, if he hears that something bad happens to you, he will come to us to share (˜elek) with us! Go and disinherit him.” Hyrcanus went up to Jerusalem to disinherit him. Rabban Yo˜anan ben Zakkai was told he had come, and invited him

139

See Rengstorf 1967:43f., on Theophylakt and Abraham Colov. Aus 1985:457, 465, arguing that the prodigal and the Eliezer stories “probably both borrow from a common oral folktale”, rather than for direct inuence in either direction. 141 The tradition is found, with considerable variants, in Tan˜uma B ad Gen. 14:1, ARN A6, ARN B13, Pirqe deRabbi Eliezer 1–2, Gen. Rabb. 42/1 ad 14:1. The account that follows is largely based on the ARN B13 version. Aus uses Tan˜uma B as his primary focus of comparison. 140

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chapter six to the academy. There he heard Eliezer giving a derashah, though he did not realise it was his own son. Rabban Yo˜anan ben Zakkai congratulated Hyrcanus on his son’s learning. Hyrcanus tells Eliezer: “My son. I did not come expecting this honor, but rather to disinherit you from my possessions, but now that I have come and seen and rejoiced in the study of your teaching, I will give you two portions more than your brothers” (Tan˜uma: “your brothers are disinherited from my possessions and they are given to you as a gift”). He answered him: “I swear ( I am satised) to have an equal share with the others in your possessions.”

The main difference with Luke 15 resides in the behaviour of Eliezer as against the prodigal. Yet even here, there is a parallel in one version: Tan˜uma B says that Eliezer had originally gone off to Jerusalem to a “life of depravity” (tarbut ra{ah). Eliezer is not said to be the “younger” brother, but there is still the sibling jealousy and resentment that one who had deserted the home (though not here with an “advance”) should still participate in the inheritance, and the ultimate reintegration of the family, with all sharing in the inheritance (albeit at the insistence of Eliezer, not his father). We might be inclined to doubt the signicance of this parallel on the grounds that similar stories are found elsewhere. In particular, Plutarch, Mor. 563b–e, tells a story where a young man, having lost his estate through living in dissipation, deteriorates further and devotes himself to avarice in earnest. However, he does eventually undergo a genuine moral conversion. He has a fall and seems dead, but on the day of his funeral he revives, and, once he returns to his senses, is dramatically changed.142 The basic theme of the returning prodigal son may thus not be specically Jewish (though Plutarch’s story does not involve sibling rivalry, which does appear in the Eliezer tradition). There are, moreover, details in the parallel between Luke 15 and the R. Eliezer tradition (particularly in the Tan˜uma B version) which, as Aus argues, are not so readily explained: (1) Tan˜uma adds the detail that Yo˜anan arranged for him a “great banquet”.143

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Adduced by Holgate 1999:147. mishteh gadol, noting that it is found in Gen. 21:8, Esther 2:18, cf. Daniel 5:1 (le˜em rav), and comparing Luke 14:16 and Rev. 19:17. Aus 1985:448f. comments that in the Eliezer tradition it has no eschatological overtones (implying that it may have in Luke 15:23; cf. Bailey 1992:192). 143

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(2) Tan˜uma adds that the brothers complain to their father that Eliezer, having abandoned his father and gone off to Jerusalem, “eats there ‘force-fed meat’.”144 (3) At the beginning of the reunion scene, Hyrcanus “leaps” in order to sit near the great ones of Israel, which Aus compares to the “running” of the father to greet the prodigal.145 (4) When Eliezer has expounded the reading, Yo˜anan kisses him on the head.146 (5) Eliezer’s brothers refer to him, in complaining to their father, as “your son” or “this son of yours” in much the same way that the older brother refers to the younger as “this son of yours”.147 We may add that there are also other factors which link R. Eliezer to Christian origins: his invocation of a bat kol in the dispute over the oven of Akhnai,148 his acceptance of an halakhic tradition from a JudaeoChristian,149 and his excommunication regarding minut.150 One might then be tempted to see this as providing supporting evidence for the recent proposal of Mahlon Smith, that the parable of the prodigal is biographical (in the gure of the younger son) or even autobiographical of Jesus himself.151 For this writer, however, Smith has failed to establish a basis for which such support could be marshalled.152 Nevertheless, the

144 Aus 1985:449f., noting at 450 n. 47 that the term used is usually associated with cattle (oxen, calves), and that Kagan translates “fatted calves” here. He points also to M. Erub. 10:9, which states that there was a street in Jerusalem of those who force-fed animals for sale. At 458, he stresses the importance of the fatted calf in the prodigal being mentioned three times (vv. 23, 27, 30). It is a real banquet, a festal dinner, and corresponds, he argues, to the large banquet (mishteh gadol ) which Yo˜anan, the spiritual father of Eliezer, arranges for him “in that hour/immediately” after his extensive fasting. Bailey 1992:120, 155, estimates that a fatted calf would feed two hundred or more people. At 156, he compares the slaughter of calves for guests in Gen. 18:7, 1 Sam. 28:24–25 and Amos 6:1, 4. 145 Aus 1985:457, quoting Weatherhead for the view that this is “a most unusual and undignied procedure for an ageing oriental even though he is in such haste”! Cf. Bailey 1992:142–146. 146 Aus 1985:457, comparing Gen. 33:4, 18:7: cf. v. 20 in the parable. 147 Aus 1985:459. 148 B.M. 59b, cf. the heavenly voice on the occasions of the baptism and transguration of Jesus: Mark 1:11, 9:7, Matt. 3:17, 17:5, Luke 3:22, 9:35, John 12:28. See further supra, 29. 149 Jacob of Kefar Sakhnayya: T. Hul. 2:24; Av. Zar. 16b; see Herr 1973:IX.1233. 150 On the relevant traditions, linked to those in n. 148, supra, see Gilat 1973:622; Boyarin 1999:19. 151 Smith 2002:96, 104f. 152 For Smith:

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support which may be derived from the various R. Eliezer traditions for close Rabbinic-Christian contacts may be taken to support Aus’s suggestion that the origins of the parable may be located in a common folkloristic tradition. VI Such speculations regarding a Jewish origin for the story do not, of course, impinge upon our reading of it as it appears in Luke. As for the latter, our interpretation of the issues in the light of Jewish sources suggests an overall meaning for the parable rather different from that traditional in much Christian scholarship and preaching: 1. The original division did not affect after-acquired property. The returning prodigal thus retains an expectation of inheritance in the residual estate, whether we follow the mishnaic law of advances or accept that the prodigal was originally disinherited—since such a disinheritance could be reversed. 2. The older brother is neither “mean” nor mean-spirited. His reaction is perfectly natural153 (if not over-generous: he does not exhibit the – Jesus is impatient, asking his father for an immediate share of his estate (Luke 11:2, so interpreting the Lord’s prayer: “Thy kingdom come”); – he does not keep his capital but exhausts it with an unconservative lifestyle among outsiders; – he mocks efforts to preserve life (Luke 17:33) or property (Luke 12:16–21), and fraternises with riffraff (Mark 2:16: cf. Luke 15:14); – he was caricatured as a shameless libertine (Luke 7:34 “The Son of man has come eating and drinking; and you say, ‘Behold, a glutton and a drunkard . . .’ ”: for the connotations, see n. 136, supra), cf. Matt. 11:19 (not 35 as in Smith); – his homecoming prompts his father to celebrate with a feast (cf. Mark 2:19), where the present is viewed as a time to celebrate, comparing his own presence to a bridegroom (at a feast where the guests must celebrate) and his father to a person who threw a dinner party for everyone (Thomas 64); – the prodigal’s sober brother stayed outside the celebrations, as did the brothers of Jesus stay outside the circle of those who idolised him until after his death (Mark 3:31–33: “And his mother and his brothers came; and standing outside they sent to him and called him. And a crowd was sitting about him; and they said to him, ‘Your mother and your brothers are outside, asking for you.’ And he replied, ‘Who are my mother and my brothers?’.” But it is Jesus who fails to invite them in, not they who keep their distance); – he had a brother, James, nicknamed “the Righteous” (Thomas 12:2, Eusebius, 2.23.4–7) who was held in high repute by “those who were strict in keeping the laws” ( Josephus, Ant. 20:200–201). 153 Cf. Danker 1988:278: “As in the present day, many in the Mediterranean world

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Jewish concept of midat ˜asidut), as is that of the father in seeking to re-establish shalom bayit. 3. The younger son may or may not have genuinely repented at this stage, but there is an expectation that he will, and for that reason he is reintegrated into the family. Whether and what further he will inherit remains to be seen (thus favouring the view that he was, initially, disinherited). 4. Insofar as the older son exhibits “pharisaical” attitudes, this is not because of his observance of the law, but rather his attitude towards the returnee. Luke may well here be addressing Jewish-Christians within the Church, who perhaps doubt the sincerity of gentile converts. Even if the “younger son” gets a “double portion”, this does not exclude his older brother. 5. The father reassures the older son that the return of the prodigal is no threat to him in his father’s affections, or (at least as regards the original division) materially. He does not reject the older son.154 As Aus writes: “God’s “amazing Grace” was meant for all, even for prostitutes and tax collectors, who, like the prodigal son, associated with Gentiles. But it was also meant for the hardhearted, self-righteous righteous, who frowned upon such associations. It is for this reason that Jesus’ parable even today speaks to our human situation, for all are addressed.”155 I return, nally, to the methodological issue posed in the rst section, as applied particularly to the question of the effect of the advance to the prodigal on his ultimate inheritance rights. I concluded in s.II that

would probably have shared the sentiments of the older brother”, quoting Menander, Deipnosophists, 4.166b–c: “It is only right that anyone who receives an estate and forthwith devours it should set sail, never to touch land again.” 154 Cf. Scott 1989:125: “This parable subverts a mytheme by which the kingdom decides between the chosen and rejected. Here the father rejects no one; both are chosen.” Carlston 1975:387f. observes: “The really striking thing about the parable, even without its present polemic context, is how much is granted to the older son and how gentle and limited his rebuke is; . . . Surely here if anywhere in the gospels we encounter a situation in which Jews and Christians still understand themselves as closely related, when Church and Synagogue have not yet become separated.” 155 Aus 1985:468f. Of course, whether it is Luke who is saying this, or someone earlier or later, is a separate question. Aus attributes it to Jesus rather than Luke. Cf. Carlston 1975:390, who also hints, at 388, that hostility to Pharisees in the Gospels (though not going so far as to involve them in Jesus’ prosecution) may be a retrojection of opposition to Jewish-Christians in the early Church: see further nn. 132–134, supra.

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there is a possible argument, based primarily on the midrash in Sanh. 91a, for an earlier stage of the halakhah in which an advance to a son presumptively (but not irrevocably) involved his disinheritance from any nal distribution and that the parable may, on this view, provide supporting evidence of such an earlier stage in the development of the halakhah—provided, at least, that such an interpretation is coherent with its theological meaning and gurative message. Such a coherent interpretation, I have argued, is indeed available against a Jewish background. The sinner has commenced, but not completed, a process of repentance. He is to be welcomed for that. He is already partially rehabilitated. Full rehabilitation will occur on completion of the process, thus resulting in the award of a “double portion”. That will not prejudice the grant already given to the older son, and, for the moment, the latter remains the father’s sole heir. But he has reason to fear that this privilege will indeed ultimately be lost, when the penitent (gentile Christianity) completes the process of repentance. Ideally, we should indeed proceed, in such matters, per notum ad ignotum. Sadly, however, neither the halakhic history nor any one of the levels of meaning of the parable provides an unproblematic notum. Resort was therefore had to a notion of “coherence” based on an attempted interpretatio hebraica of the parable. No doubt other such constructions could be offered. But from the argument here presented, this does—just—appear to be a case where the New Testament may assist us in reconstructing a pre-mishnaic stage (or group) in the history of the halakhah.

CHAPTER SEVEN

RISK-TAKING SHEPHERDS 1. Introduction Matthew1 and Luke2 provide a parable about a lost sheep; John3 has Jesus compare himself to a good shepherd who is prepared to sacrice his life to rescue his sheep from wild animals. Despite their different orientations,4 they have a common background in Jewish images of shepherding, which is here sketched before turning to some specic problems presented by the New Testament texts: on the one hand, the “apparent recklessness” (Barton 2000:205) of the shepherd in Matthew and Luke, in putting the ninety-nine (non-lost) sheep at risk by abandoning them in order to seek the one lost sheep; on the other, the signicance of John’s opposition between shepherd and “hireling”.

1

Matt. 18:12–14, quoted infra 154. Translations here from RSV. Luke 15:4–7, quoted infra 154. 3 10:1–18: “Truly, truly, I say to you, he who does not enter the sheepfold by the door but climbs in by another way, that man is a thief and a robber; (2) but he who enters by the door is the shepherd of the sheep. (3) To him the gatekeeper opens; the sheep hear his voice, and he calls his own sheep by name and leads them out. (4) When he has brought out all his own, he goes before them, and the sheep follow him, for they know his voice. (5) A stranger they will not follow, but they will ee from him, for they do not know the voice of strangers.” (6) This gure Jesus used with them, but they did not understand what he was saying to them. (7) So Jesus again said to them, “Truly, truly, I say to you, I am the door of the sheep. (8) All who came before me are thieves and robbers; but the sheep did not heed them. (9) I am the door; if any one enters by me, he will be saved, and will go in and out and nd pasture. (10) The thief comes only to steal and kill and destroy; I came that they may have life, and have it abundantly. (11) I am the good shepherd. The good shepherd lays down his life for the sheep. (12) He who is a hireling and not a shepherd, whose own the sheep are not, sees the wolf coming and leaves the sheep and ees; and the wolf snatches them and scatters them. (13) He ees because he is a hireling and cares nothing for the sheep. (14) I am the good shepherd; I know my own and my own know me, (15) as the Father knows me and I know the Father; and I lay down my life for the sheep. (16) And I have other sheep, that are not of this fold; I must bring them also, and they will heed my voice. So there shall be one ock, one shepherd. (17) For this reason the Father loves me, because I lay down my life, that I may take it again. (18) No one takes it from me, but I lay it down of my own accord. I have power to lay it down, and I have power to take it again; this charge I have received from my Father.” 4 See particularly ss. 7–8 below. 2

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The image of the shepherd in the Hebrew Bible is remarkable for its range of use: we nd it in an early legal text, in several narratives, in widespread use in the prophetic literature, and in the Psalms. That this reects an important social reality (whether indicative of nomadic origins or not) can hardly be doubted. But the responsibilities of the shepherd admit of considerable variation in these different genres. In particular, the “legal” treatment5 as found in the Mishpatim6 requires only a minimal standard of care: the shepherd is liable only if he personally misappropriated sheep or if it was stolen by a thief. He is not liable (provided he takes an oath), for natural death,7 for robbery by raiding bands or for injury. If the animal is killed by a wild animal, he need not even take an oath, provided he can produce the carcass. There is no mention of any duty in respect of lost sheep.8 Jacob’s indignant defence of his shepherding record (Gen. 31:38–40), on his departure from Laban’s household, stands in stark contrast to this:9 These twenty years I have been with you; your ewes and your she-goats have not miscarried, and I have not eaten the rams of your ocks. That which was torn by wild beasts I did not bring to you; I bore the loss of it myself; of my hand you required it, whether stolen by day or stolen by 5

Exod. 22:9 (MT): “If a man delivers to his neighbour an ass or an ox or a sheep or any beast to keep, and it dies or is hurt or is driven away, without any one seeing it, (10) an oath by the Lord shall be between them both to see whether he has not put his hand to his neighbour’s property; and the owner (baxal) shall accept (the oath), and he shall not make restitution. (11) But if it is stolen from him, he shall make restitution to its owner. (12) If it is torn by beasts, let him bring it as evidence; he shall not make restitution for what has been torn.” 6 I have argued (2006:344–59), on literary-historical grounds, that the traditional text shows signs of editorial activity, and that the original liabilities of the shepherd may have been greater. But this does not affect the present argument. 7 We may compare this with actual shepherding contracts discovered in the ANE, where a 10% or 15% allowance is made for natural deaths, but beyond that the shepherd is liable: see Jackson 2006:350 n. 96. On the categorisation of natural death as an act of God, contrast LH 249 with HL 75; see Jackson 2006:345, 348, 350 n. 96, 358 n. 129, 362 n. 143. 8 On the other hand, twofold restitution for misappropriation of lost property (including a lost sheep) is found in Exod. 22:8—a text normally regarded as a priestly generalising addition ( Jackson 2006:342), but (unusually) treated by Derrett (1978:127f.) as part of the mishpatim paragraph on shepherding. The duty of return of lost property is stated in Exod. 23:4 in relation to the ox and ass. 9 The Rabbis, however, used the narrative in interpreting the status of the shepherd as a paid bailee: see Jackson 2006:334f. and n. 22, infra.

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night. Thus I was; by day the heat consumed me, and the cold by night, and my sleep ed from my eyes.10

Was Jacob here claiming to have observed a standard higher than that demanded by the law? Or does his claim reect the particular nature and context of his shepherding activities for Laban, whether as a member of Laban’s household, a “hireling”11 (paying off his bride-price), or indeed a self-interested prot-sharer?12 What matters for present purposes is the fact that such different models of shepherding were known in the tradition; I shall argue in due course for their relevance to the New Testament passages. There are hints that the responsibility of a shepherd for his sheep was used as a model of the responsibility of an older brother for a younger. When Joseph’s brothers have to account for his disappearance to Jacob, it is Reuven, the eldest brother, who feels responsibility: “The lad is gone; and I, where shall I go?” (Gen. 37:30). What do the brothers do? They send Joseph’s coat, splattered with animal blood, to Jacob, as evidence that he was killed by a wild beast, just as in Exod. 22:12 a shepherd has to provide “real” evidence (in the form of the carcass) to the owner.13 It may well be this, too, which underlies the notorious response of Cain after the killing of Abel:14 “Am I my brother’s keeper?” (hashomer a˜i anokhi): Exod. 22:9 introduces the topic of shepherding as one in which a man hands over his animals to his neighbour lishmor.15 In this context, the extensive use of shepherding as a metaphor for God’s relationship to Israel found in the prophetic literature16 may appear less surprising. Naturally, God appears here as the ideal shepherd (sometimes, by contrast with the failed leadership of the people), who seeks out lost sheep ( Jer. 23:4, Ezek. 34:11–12, 16), thus preventing them from falling prey to wild animals (Ezek. 34: 5, 28).17 Indeed in Amos 10

On this the reader may be permitted some scepticism: if so, how did Jacob manage to father so many children? Shepherding was in fact big business in the ancient Near East, not the romantic image of the pipe-playing lone shepherd. There were shepherd masters and under-shepherds. Jacob is far more likely to have been, or rapidly become, a shepherd master. 11 Cf. the interpretation of Exod. 22:14b, discussed in Jackson 2006:362f. 12 On such contracts in the ancient Near East, and their relevance to the interpretation of Exod. 22:9–12, see Jackson 2006:353f. 13 Joseph is compared to a sheep also in Ps. 80:2. 14 On both narratives, see Daube 1947:3–15. 15 All the more pointed in that Abel was himself a shepherd: ro{eh tson. 16 Isa. 40:10f., Jer. 23:1–6, Ezek. 34, Zech. 11:5–9, Amos 3:12. See further Thomson 1955:407f., noting the presence of the metaphor also in Assyrian literature. 17 On Ezek. 34, see Brownlee 1958.

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3:12, God rescues them (whether alive or dead) from the mouth of the lion.18 3. The Risk-Taking Shepherd in the Synoptics Matt. 18 (12) If a man has a hundred sheep, and one of them has gone astray ( ), does he not leave the ninety-nine on the mountains and go in search of the one that went astray (   )? (13) And if he nds it, truly, I say to you, he rejoices over it more than over the ninety-nine that never went astray ( 

 ). (14) So it is not the will of my Father who is in heaven that one of these little ones should perish. Luke 15 (1) Now the tax collectors and sinners were all drawing near to hear him. (2) And the Pharisees and the scribes murmured, saying, “This man receives sinners and eats with them.” (3) So he told them this parable: (4) “What man of you, having a hundred sheep, if he has lost (  ) one of them, does not leave the ninety-nine in the wilderness, and go after the one which is lost ( ), until he nds it? (5) And when he has found it, he lays it on his shoulders, rejoicing. (6) And when he comes home, he calls together his friends and his neighbors, saying to them, ‘Rejoice with me, for I have found my sheep which was lost ( ).’ (7) Just so, I tell you, there will be more joy in heaven over one sinner who repents than over ninety-nine righteous persons who need no repentance.

Before addressing the shepherd’s risk taking, one terminological difference19 between the versions, and one commonality (which distinguishes them from John’s parable) may be noted. Luke describes the sheep as “lost” ( ), Matthew as “gone astray” (   ). This corresponds to the distinction found in Ezek. 34:4, where the prophet complains of the shepherds of Israel, that

18 “As the shepherd rescues from the mouth of the lion two legs, or a piece of an ear, so shall the people of Israel who dwell in Samaria be rescued, with the corner of a couch and part of a bed.” That the divine shepherd here rescues only the “remnant” of the animal may well allude to the prophecy that only a remnant of the people will be rescued (cf. Jer. 23:3). However, the metaphor is based on Exod. 22:12, used also in the Joseph narrative: cf. 153, supra. 19 Barton 2000:205 notes another: in Luke (v. 4) the shepherd searches “until he nds it” whereas in Matthew (18:13) the shepherd (merely) “nds it”. However, Matthew has already had the shepherd “go in search of the one that went astray” (v. 12). The difference here appears to be little more than one of grammatical structure.

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“the strayed (nida˜at: LXX   ) you have not brought back, the lost (ovedet: LXX  )20 you have not sought”. This may well indicate that the terms were not regarded as synonymous. While there may be some theological signicance in the connotations of the choice (see below, s. 7), the variation does not appear pertinent to the social understanding of the parable: in both cases, the shepherd has apparently abandoned the rest of the ock in order to seek out the wandering animal. The terminological commonality may be more pertinent: in neither version is the “shepherd” actually described as such. The implication may be that this is non-commercial shepherding, more particularly shepherding by the owner himself or a member of his family.21 In the context of John’s parable, Derrett (1978:143) observes: “A son when given sheep to look after is in fact working without wages, tending his inheritance, in which he has almost a vested interest.” In this context, not only does the shepherd have (arguably) a longer-lasting and thus deeper relationship with the sheep; the risk he takes is, in part at least, his own. In claiming constant attendance on Laban’s sheep (by day and night), Jacob may well be seeking to invoke this same model: he has been acting as a family member.22 David’s exploits as a shepherd (1 Sam. 17:34f.), though more directly relevant to the risk-taking in John, also illustrate just that relationship: David is shepherding for his father, Jesse. In commercial shepherding, on the other hand, it would be inconceivable that the ock be left unattended in pursuit of a single stray. Indeed, Ezekiel seems to have the latter context in mind, in accusing the shepherds of Israel of allowing the sheep to become scattered “because there was no shepherd; and they became food for all the wild beasts” (Ezek. 34:5).23 And when David, at a later stage, decided that the time Cf. the LXX use of  of avedah in Exod. 22:8(9). Examples: Abel (Gen. 4:2), Rachel (Gen. 29:9), Jacob (Gen. 30:31), Moses (Exod. 3:1; further infra, 158), David (1 Sam. 17:34f.; see 158, infra). 22 Supra, 152f. The Babylonian Talmud, B.M. 93b, seeks to understand Jacob’s behavior in terms of the halakhic categories of guardian (shomer): “He further raised an objection: To what extent is a paid bailee bound to guard? Even as far as, Thus I was; in the day the drought consumed me, and the frost by night?—There too, he answered, the reference is to the city watchman. Was then our father Jacob a city watchman? he asked.—[No.] He merely said to Laban, ‘I guarded for you with super-vigilance, as though I were a city watchman’.” 23 On the duty in the Bible and the ancient Near East to ensure the presence of a shepherd (in the commercial context, an under-shepherd), see Jackson 2006:351–55. Thomson 1955:414 writes: “How natural for the Good Shepherd to send out His under-shepherds primarily to ‘the lost sheep of the house of Israel’ . . .” 20 21

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had come for him to join the battle against the Philistines, he “left the sheep with a keeper” (shomer: 1 Sam. 17:20). Not knowing this, his elder brother, Eliab, reproaches him: “With whom have you left those few sheep in the wilderness?” (1 Sam. 17:28). In rabbinic law, the position of the commercial shepherd (a shomer sakhar) is made clear on this point: he is absolutely liable for property (here sheep) “lost” as well as stolen.24 4. The Risk-Taking Shepherd in John The Good Shepherd, with whom Jesus explicitly identies himself in John 10, takes a risk of a different order: John 10 (11) I am the good shepherd. The good shepherd lays down his life for the sheep. (12) He who is a hireling ( ) and not a shepherd, whose own the sheep are not (      !), sees the wolf coming and leaves the sheep and ees; and the wolf snatches them and scatters them. (13) He ees because he is a hireling and cares nothing for the sheep. (14) I am the good shepherd; I know my own ( " #) and my own know me.

What precisely is the distinction between the shepherd and the “hireling”? Derrett (1978:139) correctly sees the latter as a “hired man who is not the regular shepherd [and thus] has no personal nancial interest in the sheep”; the antithesis (the “regular shepherd”), however, is someone “whose own the sheep are” (  !)—the owner himself, or perhaps his son (to whom a hireling ( ) is opposed in the parable of the prodigal son (Luke 15:19). In identifying himself with such a Good Shepherd, Jesus asserts that he knows “my own ( " )”. As in Luke, it is the shepherd-owner, rather than the commercial shepherd, who goes the extra mile. Derrett seeks to interpret the distinction in terms of mishnaic law. Indeed, he argues that John “shows his knowledge of Jewish law by saying, correctly, ‘a wolf ’ (singular) and not a robber: a robber or more than one wolf would have been ones (‘inevitable accident’), an invariable

24 M.B.M. 7:8: “There are four classes of bailees: (1) an unpaid bailee, (2) a borrower, (3) a paid bailee, (4) and a lessee . . . the paid bailee and the lessee take an oath [that they have not been negligent] concerning [a beast which has suffered] a broken bone, or which has been driven away (shevuyah), or which has died [Ex. 22:9]. But they pay compensation for the one which was lost (aveidah) or stolen”. Cf. Jackson 2006:336.

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rule (Mishnah, B.M. VII.9, 11), and the ‘hireling’ could not have been blamed” (1978:139). And indeed, Mishnah B.M. VII.9 commences: “A single wolf does not count as an unavoidable accident. Two wolves are regarded as an unavoidable accident.”25 If we follow this argument, the “hireling” was not entitled, according to the halakhah, to abandon his charge in the face of a single wolf: that did not constitute ones. Attractive as this argument may appear at rst sight, it must be rejected. There is little evidence that the rabbinic conceptualisation of the various situations of bailment in Exodus 22:6–14 had developed by this period. Philo and Josephus know nothing of it, but rather combine the paragraphs on deposits and shepherding into a single paragraph on deposit, without highlighting the position of the shepherd.26 Of course, it might be possible to argue in reverse: that Derrett’s parallel allows us to argue from the text of John that the rabbinic rule was by this period already known. But in fact, Derrett has confused two different concepts. The “hireling” in John is not the sokher (“hirer”),27 one of the categories to which the mishnaic rule applies, but rather the , which is the LXX translation of sakhir in Exod. 22:14b. He is simply a labourer hired by the owner to look after his sheep, not a hirer of the sheep who will take some prot from his use of them.28 If John’s argument contributes to our knowledge of the history of Jewish law, it is in attesting to the survival of (what appears to have been) the original meaning of sakhir in Exod. 22:14b,29 as against the interpretation which the Rabbis adopted. The resources used by John thus appear to be similar to those of Luke: the understanding, based mainly on sources from the Hebrew Bible, that a family shepherd will go further in protecting the sheep than a commercial shepherd, and may indeed be prepared to risk his life in 25 The Mishnah, however, adds the following qualication: “Under what circumstances? When they come along on their own. But if he took [the sheep] to a place in which there were bands of wild animals or thugs, these do not constitute unavoidable accidents.” 26 See further Jackson 2006:335. 27 At 1978:139 n. 81, Derrett cites Herzog 1967:182. The cases in which the bailee is not liable for ones, according to Herzog’s account (and see now Jackson 2006:336f.) are those of the paid bailee (shomer sakhar) and the sokher. The latter, however, is the “hirer” who “pays to the owner for the use he is making of the hired object, animate or inanimate” (Herzog, ibid., p. 181), not the “hireling”. 28 Cf. the Roman distinction between locatio conductio rei (“hirer”) and locatio conductio operarum (“hireling”). As it happens, a Roman source depicts the pastor as armed with a javelin against wild animals: see Varro, De re rustica ii.10.1–5, cited by Driver and Miles 1952:454 n. 9; Jackson 2006:365 n. 161. 29 For the debate in modern biblical scholarship, see Jackson 2006:362.

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the process. Particularly relevant here is David’s claim (to Saul): “Your servant used to keep sheep for his father; and when there came a lion, or a bear, and took a lamb from the ock, I went after him and smote him and delivered it out of his mouth; and if he arose against me, I caught him by his beard, and smote him and killed him” (1 Sam. 17:34f.). The Testament of Gad (1:2–3) combines elements from a number of biblical sources (and shows that John need not have been dependent on the Mishnah for his example of the wolf ): Hearken, my children, I was the ninth son born to Jacob, and I was valiant in keeping the ocks. Accordingly I guarded at night the ock [cf. Jacob]; and whenever the lion (cf. David; Amos)30 came, or the wolf, or any wild beast against the fold, I pursued it, and overtaking it I seized its foot with my hand and hurled it about a stone’s throw, and so killed it.

Interestingly, the passage continues (1:4–7) by linking Joseph to this theme, here as a shepherd who (mistakenly) accuses his step-brother shepherds (including Gad) of having misappropriated and consumed some of the animals in their care (cf. Ezek. 34:2–3, 10). (4) Now Joseph my brother was feeding the ock with us for upwards of thirty days, and being young, he fell sick by reason of the heat. (5) And he returned to Hebron to our father, who made him lie down near him, because he loved him greatly. (6) And Joseph told our father that the sons of Zilpah and Bilhah were slaying the best of the ock and eating them against the judgement of Reuben and Judah. (7) For he saw that I had delivered a lamb out of the mouth of a bear, and put the bear to death; but had slain the lamb, being grieved concerning it that it could not live, and that we had eaten it.

Deliberate misappropriation of the sheep (rather than negligence in their care) is the principal concern of the law of the shepherd in Exod. 22:9–12, and remained an area of responsibility common to all the rabbinic categories of bailment.31 5. Insiders and Outsiders If the model of the exemplary shepherd in both the Synoptics and John is based on family shepherding, why do the Synoptics avoid the use of

30 31

3:12: see n. 18, supra. See Jackson 2006:333f., 336f., 348, 357 n. 125 on liability for dolus.

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the term “shepherd” in describing it, while John adopts it? It is hardly sufcient to respond that John alone contrasts the exemplary shepherd with his opposite (here, the “hireling”). The answer may well be that the Synoptics are closer to the Palestinian Jewish environment than is John. For shepherds had acquired a bad name:32 Abba Gorion of Zaidan says in the name of Abba Guria (var. Saul): A man should not teach his son to be an ass-driver or a camel-driver, or a barber or a sailor, or a herdsman (ro{eh) or a shopkeeper, for their craft is the craft of robbers (listim).

Listim, brigands, were archetypical outsiders: in legal terms, they were raiding bands, contrasted with the thief (a member of the community, typically acting alone);33 in political terms, they were commonly freedom ghters against Roman rule, the designation reecting their tactics as viewed by their opponents. They functioned largely in the countryside: we read of elds being reaped by listim:34 indeed, politically motivated brigands were accustomed to raise ocks in the country.35 Contact with them was discouraged: a dictum is attributed to R. Yo˜anan b. Zakkai, that “the associate of a brigand is like a brigand”.36 Indeed, the very rearing of small animals in Israel came to be prohibited.37 This will only have reinforced the traditional distinction between family (insider) v. commercial (outsider) shepherding. 6. The Theological Identication of the Shepherd The shepherd appears as a gure of political and/or spiritual leadership already in the Hebrew Bible.38 It is applied to Moses (who indeed

32 M. Kidd. 4:14. Cf. Tooley 1964:23: “. . . although Palestinian Judaism insisted that God was the Shepherd of Israel and had called such shepherds as Moses and David, nevertheless, in pre-Christian Judaism the work of the shepherd was included among the fraudulent professions”, citing also Jeremias, TWNT VI.488; Wallis 2004:552f.: “. . . this vocational title ‘shepherd’ was a not of good omen in the early Jewish and NT period.” 33 Derrett 1978:143f. sees this as relevant also to John’s presentation. 34 M. Peah 2.7–8; Siphra Kedoshim 1.6. 35 Gulak 1941:186ff. 36 Yer. Sanh. 1.2 (Krotoshin, 19b19): shutaf listim kelistim. 37 M.B.K. 7:7. See Gulak 1941; Jackson 1972:38. 38 See further Thomson 1955:408f., with ancient Near Eastern parallels.

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served his father-in-law Jethro as a shepherd)39 in both Ps. 77:20: “Thou didst lead thy people like a ock by the hand of Moses and Aaron”, and Isa. 63:11: “Then he remembered the days of old, of Moses his servant. Where is he who brought up out of the sea the shepherds of his ock?”40 Moses justies his request to God to appoint his successor (“a man over the congregation, who shall go out before them and come in before them, who shall lead them out and bring them in”) with the words: “that the congregation of the Lord may not be as sheep which have no shepherd” (Num. 27:16–17).41 David is so recognised in Ps. 78:70–71:42 “He chose David his servant, and took him from the sheepfolds; from tending the ewes that had young he brought him to be the shepherd of Jacob his people, of Israel his inheritance”, an echo of which is found in an apocryphal psalm at Qumran: “Jesse put me (David) as shepherd of his ock” (11Q5p, col. xxviii l.4). God promises a future David in Ezek. 34:22–24: I will save my ock, they shall no longer be a prey; and I will judge between sheep and sheep. And I will set up over them one shepherd, my servant David, and he shall feed them: he shall feed them and be their shepherd. And I, the Lord, will be their God, and my servant David shall be prince among them; I, the Lord, have spoken.

Whether this is an eschatological promise is a matter of some dispute.43 Another text from Qumran, the Words of the Luminaries (4Q504, iv:5–8), 39 Exod. 3:1. Derrett 1979:43f. notes the rabbinic elaboration in Midrash Rabbah to Exod. 3:2 (Soncino, 49), where Moses goes after a stray lamb, puts it on his shoulder and brings it back to the ock, whereupon God recognised (at the burning bush) that Moses was the man to lead his people out of Egypt. Derrett then argues: “The reason why Moses carried the lamb so is plain enough. The redemption from Egypt was associated with the metaphors known from Isaiah (see also lxiii.9, 11) and Hosea, and of course could not have occurred without the rst Passover . . . Thus, without knowing it, the man who nds a sheep he has lost nds himself performing actions reminiscent of the preparations for Passover.” 40 So RSV, based on variants; others vocalise ro{eh as singular (construct) and take the et as “with” rather than indicating a direct object. Thus JPS translates: “Then they remembered the ancient days, Him, who pulled His people out [of the water]; “Where is He who brought them up from the Sea along with the shepherd of His ock?” 41 Derrett 1978:132 attaches great importance to this, noting that the name of Jesus in Hebrew is Joshua. 42 Derrett 1979:46 cites also Ps. 77:21; Midrash Rabbah to Exodus 3:2 (Soncino, 48–50); Philo, De Jos. 2. 43 See Fitzmyer 2000:78–80, stressing the absence here of the term “messiah”, apparently understanding that concept in exclusively eschatological terms. Aliter, Thomson 1955:411f., comparing Mic. 5:2–4 and Ezek. 37:24–25.

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does appear to interpret it in eschatological terms: “you . . . established your covenant with David so that he would be like a shepherd, a prince over your people, and would sit in front of you on the throne of Israel for ever”, as does Ps. Salamon 17:40: “Behold, O Lord, and raise up unto them their king, the son of David, At the time in which Thou seest, O God, that he may reign over Israel Thy servant . . . (He will be) shepherding the ock of the Lord faithfully and righteously, And will suffer none among them to stumble in their pasture.”44 Yet here too, as with the gure of the “prophet like Moses”,45 there were competing (eschatological and non-eschatological) interpretations. The shepherd appears as teacher not only in the New Testament,46 but also at Qumran, in the person of the mevaker of the Damascus Covenant (CD xiii:7–9): “And this is the rule of the Inspector of the camp. He shall instruct ( yaskil) the Many in the deeds of God, and shall teach them (viviynem) his mighty marvels, and recount to them the eternal events with their solutions. He shall have pity on them like a father on his sons, and will heal all the strays (?) like a shepherd his ock (kero{eh edro, cf. Ezek. 34:12).” But such a teacher is no mere academician; he also exercises disciplinary functions. Against this background, it is hardly surprising that the theological signicance of the shepherd in our parables admits of different interpretations.47 More surprising is the range of views we encounter regarding the very importance of the image in the New Testament. While Tooley maintains that “despite its strong O.T. background, Jesus did not use this metaphor extensively”,48 Wallis argues: “In view of the scant evidence for use of the term “shepherd” as an honoric title for a political or spiritual leader, it is surprising to nd it so emphasised as a term of approbation in NT literature.”49 Gerhardsson goes further, speaking of the shepherd motif as “a central motif in the teaching of Jesus”;50 indeed, “the frequency of its occurrence and its centrality should perhaps be emphasised; such words as those of Jesus that 44 Cited by Derrett 1978:123 for the idea that the Messiah was a shepherd. Translation from http://www.goodnewsinc.net/othbooks/psalmsol.html. 45 See 19, 24f., 29f., supra. 46 Tooley 1964:20, on Matt. 10:6, 15:24; cf. Derrett 1978:122. 47 Sections 7–8 infra. 48 Tooley 1964:24f., suggesting as a possible reason that “where shepherd is used of human leaders in the O.T., it has the strongest military and political overtones.” 49 Wallis 2004:552f. 50 1958:11, citing the 1939 Giessen doctoral thesis of W. Jost, POIMEN. Das Bild vom Hirten in der biblischen Uberlieferung und seine christologoische Bedeutung.

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the Son of Man has come to seek and save that which was lost [ Luke 19:10], to go to the lost sheep of the house of Israel [Matthew 15:4, cf. 10:5] express the central intention of his whole Ministry.” The New Testament use of the image differs from that in the Hebrew Bible in one highly signicant respect: there is no emphasis on the gure of God as the shepherd; rather, God is the owner of sheep51—and an owner who entrusts care of the sheep to another (family member). 7. Luke’s Theological Message The overt theological message in Luke concerns repentance and forgiveness, the common theme it shares with the parables of the lost coin and the prodigal son which immediately follow.52 The fact that neither lost sheep nor lost coins “repent”53 has been seen as evidence that the parable (which may go back to Jesus) is here “being interpreted by being amplied in a particular direction” (Barton 2000:206). The narrative context indicates that it is part of Jesus’ defence to the criticism that he “receives sinners and eats with them”. Indeed, Jesus consorts with taxcollectors, viewed not only as sinners but also as outsiders. This is why he avoids explicit reference to shepherds in the parable. The model of shepherding behaviour which he commends is that of the insider, the family member. Indeed, there is one terminological difference from the version in Matthew which indicates that the latter, despite its less “polemical” context,54 is more theologically weighted. In Luke, the sheep are referred to as (merely) “lost”55 ( ); in Matthew they have “gone astray”56 ( $  ).57 Though both terms are used in the LXX of 51 Derrett 1978:123f., approving Jeremias, TWNT VI.496 (Engl., 1958). Cf. Thomson 1955:412: “In the NT it is never God who leads the sheep; it is Christ.” 52 Compare not only the explicit teachings of vv. 7 and 10, but also the use of “lost and found” in the parable of the prodigal (v. 24) and the theme of rejoicing in all three (vv. 6, 7; 9–10; 23, 32). 53 Cf. 134f., supra. 54 Gerhardsson 1958:10f., following Jeremias 1956:15ff. 55 Cf. Matt. 10:6, 15:24, Luke 19:10. 56 The distinction is noted also by Barton 2000:205, though he attaches a different signicance to it. 57 Elsewhere, however, Matthew uses the expression “lost sheep of the house of Israel”, which Thomson 1955:414 notes to allude to the “lost sheep” of Jer. 50:6, and which he associates with the image of the good shepherd (though it is not used in John). He takes it to be used “not in blame but affectionate pity”: such sheep have been “neglected”.

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Ezek. 34:16, the Hebrew term used there58 for “strayed”, nida˜at, has stronger connotations than that for “lost”, ovedet, since it is used not only of sheep that go astray (nida˜im; LXX $ ) in Deut. 22:1, but also of the city seduced into idolatry (vayadiy˜u, Deut. 13:13), described by the Rabbis as ir nida˜at.59 The respective contexts of the lost sheep parable in Matthew and Luke conrm the signicance of the terminological distinction.60 Ezekiel’s formulation—“the strayed you have not brought back, the lost you have not sought”—implies that the location of strays is known, that of the lost sheep is not. Strays have been seduced by a known source of danger; they have not merely wandered off of their own accord.61 That ts the context in Matthew, which commences with the disciples asking Jesus “Who is the greatest in the kingdom of heaven?” (18:1). He answers: someone who is as humble as a child, and continues (vv. 5–6): “Whoever receives one such child in my name receives me; but whoever causes one of these little ones who believe in me to sin, it would be better for him to have a great millstone fastened round his neck”, followed by “Woe to the world for temptations to sin! For it is necessary that temptations come, but woe to the man by whom the temptation comes!” (v. 7). Neither the Matthaean nor the Lukan version of the parable imply, in their respective contexts, that the gure of the shepherd has eschatological signicance.62 The position is different in John.

58 A different verb, ta{ah (also with moral connotations), is used in Jer. 50:6: “My people have been lost sheep (tson ovdot); their shepherds have led them astray”; Isa. 53:6: “All we like sheep have gone astray (ta{inu)”; Ps. 119:176: “I have gone astray (ta{iti) like a lost sheep”. 59 E.g., T. Sanh. 14:1, Sanh. 3a. 60 On the contexts and applications of the parable in the two synoptic gospels, see Tooley 1964:22f., 24 (“. . . the ‘ock’ soon came to represent the Church with its leaders as its shepherds. This is well illustrated in the Matthaean application of the Lost Sheep parable where the parable itself is ‘a call to faithful pastorship in the community’ [ J. Jeremias, Parables, p. 29] and the context is pastoral discipline”); cf. Barton 2000:204f. 61 Despite the RSV of Matt. 18:12: “If a man has a hundred sheep, and one of them has gone astray ( ), does he not leave the ninety-nine on the mountains and go in search (%&) of the one that went astray?” But %& does not necessarily imply search in this sense. 62 Despite a tentative suggestion of Derrett 1979:43f., 47, based on Luke’s description (15:5) of the shepherd as carrying the retrieved sheep on his shoulders, interpreted in the light of Hos. 11:3; Isa. 40:11, 49:22, 60:4, 66:12; Num. 6:19, Deut. 18:3, 2 Kings 9:24; Exod. 19:4–5.

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The importance of Ezek. 34 for John’s parable is widely recognised.63 Indeed, Gerhardsson (1958:13) describes it as “a messianic midrash on Ez 34”. Yet however explicit and systematic the treatment of the theme in Ezekiel, in contrasting the roles and behaviour of the “shepherds of Israel” who misappropriate and neglect “my” (God’s) sheep (Israel), prompting God not only to require an account from them,64 but also personally to assume the shepherding role (vv. 11–16), the conclusion to the passage interjects (within the sequence of rst person statements as to what God will do, which continues to v. 29) the role of a future David: 22 I will save my ock, they shall no longer be a prey; and I will judge between sheep and sheep. 23 And I will set up over them one shepherd (ro{eh e˜ad), my servant David, and he shall feed them: he shall feed them and be their shepherd. 24 And I, the Lord, will be their God, and my servant David shall be prince (nasi, LXX: '() among them; I, the Lord, have spoken. 25 I will make with them [LXX: with David] a covenant of peace and banish wild beasts from the land, so that they may dwell securely in the wilderness and sleep in the woods.

This prompted Gerhardsson to comment on v. 13: “There is a characteristic vacillation here between the thought of what God will do himself and of what he will do through his Messiah.”65 The emphasis on “one shepherd” (contrasted with the leadership of the “shepherds” of Israel)66 does not come through as clearly in the LXX, but the latter’s designation of David as the recipient/party of the future covenant emphasises that point in a different way. It also suggests a non-eschatological, perhaps even non-messianic reading: the messiah is not normally in a covenantal relationship with God.

63

Dodd 1953:358–60; Thomson 1955:414; Gerhardsson 1958:12. Ezek. 34:10; this may allude to the annual accounting for sheep which was a feature of shepherding contracts in the ancient Near East: see Jackson 2006:349 n. 96. 65 1958:13. Aliter, Dodd 1953:360: “the good shepherd . . . doubles the roles of David . . . and of God himself; for in John it is Christ, as in Ezekiel it is Jehovah, who leads the sheep . . . and effects their salvation.” 66 Thomson 1955:413 takes John’s “thieves and robbers” to allude to the self-enriching shepherds condemned in Ezek. 34. 64

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In John, the rst person voice is that of Jesus (commencing: “Truly, truly, I say to you”).67 That Jesus’ message is salvational, through his person, cannot be doubted: “I am the door;68 if any one enters by me, he will be saved, and will go in and out and nd pasture. The thief comes only to steal and kill and destroy; I came that they may have life, and have it abundantly” (10:9–10). Whether John here claims that such salvation is through the death of Jesus is less clear. There is no model for the death of the shepherd in Ezekiel. That is not only because the detailed description of the ideal shepherd is attributed to God. There is no explicit reference in Ezekiel to the shepherd directly encountering the wild beasts to which the sheep may fall prey; rather, the ideal shepherd looks after the sheep in such a way that they do not fall prey to wild animals in the rst place. Such considerations, of course, do not determine John’s meaning. He may well have read Ezekiel in the light of the Christian interpretation of Isa. 53. But does “The good shepherd lays down his life for the sheep” (v. 11) mean that he actually sacrices his life for the sheep,69 or rather that he is willing to put his life at risk.70 Taken alone, we may assume the latter. But then (in decoding the parable), John has Jesus say: 14 I am the good shepherd; I know my own and my own know me, 15 as the Father knows me and I know the Father; and I lay down my life for the sheep. 16 And I have other sheep, that are not of this fold; I must bring them also, and they will heed my voice. So there shall be one ock, one shepherd. 17 For this reason the Father loves me, because I lay down my life, that I may take it again. 18 No one takes it from me, but I lay it down of my own accord. I have power to lay it down, and I have power to take it again; this charge I have received from my Father.

67 ) *  *  + , & (10:1, 7; cf. Dodd 1953:356), cf. Matt 5:18 and the antitheses of the Sermon on the Mount. John may well have seen the passage in Ezekiel as itself having an antithetical form. 68 On this aspect of the parable, and the use of the concept of breach, see Derrett 1978: 124, 132–36, attaching great signicance to Mic. 2:11–13 and claiming at 132 that Mic. 2:13 “is connected with Exod. xxii.1 by the very rare idea of a ‘breach’”. But in fact the verbs used in the two passages are different (though he rightly notes at 135 the use of parats in M.B.K. 6:1 in this context). 69 This occurs nowhere in the Hebrew Bible, though the story told by Joseph’s brothers may amount to such a (false) claim. 70 Cf. Derrett 1978:139 and n. 79.

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Tooley (1964:23f.) agrees, on the basis of both Jewish tradition and the paucity of support from the synoptics, that it seems highly unlikely that Jesus himself referred to his own death in terms of the shepherd metaphor, and concludes that this passage results from the early Church’s meditation on the death of Jesus. Derrett appears not to want to go even that far: “Jesus ‘gives’ his life for the sheep, on the basis that having pledged it, taken the risk, it is his again, the risk having (paradoxically) been successfully taken. There is no question, on this level, of a vicarious death.71 The sheep are restored and, despite the dangers, the shepherd emerges ultimately unscathed.”72 The qualication “on this level” is not entirely clear; certainly, Derrett elsewhere sees aspects of the shepherd metaphor as evoking the passion.73 It seems safe to conclude that the use made of the shepherding metaphor, like that of the “prophet like Moses”, changed between the lifetime of Jesus and the teaching of the early church, reecting the enhanced status of Jesus for the believing community.

71

Aliter, Dodd 1953:360; Thomson 1955:415. 1978:141. At 129f. n. 29 he notes: “The exploits of David . . . as explained by Mek. Exod. xv.1 amount to a pledging of life for the sheep.” 73 Derrett 1979:43f., on the Midrash of Moses carrying the lamb (supra, n. 39), and noting the sacrice of the paschal lamb at Passover, evoking the sacrice of Isaac (1979:47). He does however acknowledge that “a common sense question is whether we have taken leave of our parable.” 72

CHAPTER EIGHT

“HOLIER THAN THOU”? MARRIAGE AND DIVORCE IN THE SCROLLS, THE NEW TESTAMENT AND EARLY RABBINIC SOURCES* 1. Introduction Marriage and divorce are weakly institutionalised in the Hebrew Bible; indeed it is difcult to speak of them as “legal” (as opposed to social) institutions before the religiously motivated reforms of Ezra.1 Nothing is said in the laws about the mode of creation of (regular) marriage,2 and Deut. 24:1–4, which mentions incidentally procedures and criteria for divorce, is primarily concerned with the special problem of resumption of the initial marital relationship (“palingamy”)—whether for economic3 or religious4 reasons. Far more attention is devoted to forbidden sexual relationships (whether marital or not). In Mishnaic law, however, marriage and divorce look very different: not only do kiddushin, ketubot and gittin form tractates of the Order of Nashim; they are presented (whatever their actual force at that period) as institutions governed by clear normative rules. The New Testament texts may both contribute to our understanding of the Jewish development and themselves be illuminated by being placed in the context of the institutionalisation of marriage and divorce. We shall explore the role of both theological and social factors in this institutionalisation. I take the view that theological factors, in the form

* I have beneted from critical observations of Roger Tomes and Gordon Wenham on an earlier draft of this paper. 1 See Jackson 2004a:143–54; 2007. 2 Entry into relations with a debt-slave, and the terms of such a relationship (including the three rights of Exod. 21:10, which rabbinic law was to treat as the basic rights of a wife), are, however, regulated. I argue in Jackson 2007a that the main concern even here (as in other forms of marital relationship) is with the “vertical” (slavery and relationship to children) rather than “horizontal” (marital) relationships. 3 See Westbrook’s 1986 interpretation, which hitherto I have largely favoured. 4 As suggested by the language of Deut. 24:4; see further below, at 195.

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of both the Genesis proof texts used in some Second Commonwealth sources and (to a lesser extent) the prophetic marriage metaphor for the relationship between God and Israel, themselves contributed to this process, and should not be regarded purely as part of its expostfacto justication. As for social factors, questions of marriage and divorce raise issues of identity both within the sectarian divisions of Second Commonwealth Jewry and in its relationship to the gentile world. Our topic has attracted an enormous amount of attention from both Jewish and Christian scholars. Here, I provide a summary overview of the issues arising from the New Testament and Qumran texts, then seek to interpret them in the context of the issues of theology, social identity and institutionalisation which they raise. 2. An Overview of the Synoptic Problem Jesus’ teaching on divorce is found in four passages in the synoptic gospels: A. Luke. 16 16) The law and the prophets were until John; since then the good news of the kingdom of God is preached, and every one enters it violently. (17) But it is easier for heaven and earth to pass away, than for one dot of the law to become void. (18) Every one who divorces his wife and marries another commits adultery, and he who marries a woman divorced from her husband commits adultery. B. Mark 10 (2) And Pharisees came up and in order to test him asked, “Is it lawful for a man to divorce his wife?” (3) He answered them, “What did Moses command you?” (4) They said, “Moses allowed a man to write a certicate of divorce, and to put her away.” (5) But Jesus said to them, “For your hardness of heart he wrote you this commandment. (6) But from the beginning of creation, ‘God made them male and female.’ (7) ‘For this reason a man shall leave his father and mother and be joined to his wife, (8) and the two shall become one esh.’ So they are no longer two but one esh. (9) What therefore God has joined together, let not man put asunder.” (10) And in the house the disciples asked him again about this matter. (11) And he said to them, “Whoever divorces his wife and marries another, commits adultery against her; (12) and if she divorces her husband and marries another, she commits adultery.”

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C. Matt. 19 (3) And Pharisees came up to him and tested him by asking, “Is it lawful to divorce one’s wife for any cause?” (4) He answered, “Have you not read that he who made them from the beginning made them male and female, (5) and said, ‘For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one esh’? (6) So they are no longer two but one esh. What therefore God has joined together, let not man put asunder.” (7) They said to him, “Why then did Moses command one to give a certicate of divorce, and to put her away?” (8) He said to them, “For your hardness of heart Moses allowed you to divorce your wives, but from the beginning it was not so. (9) And I say to you: whoever divorces his wife, except for unchastity, and marries another, commits adultery.” D. Matt. 5 (31) It was also said, “Whoever divorces his wife, let him give her a certicate of divorce.” (32) But I say to you that every one who divorces his wife, except on the ground of unchastity, makes her an adulteress; and whoever marries a divorced woman commits adultery.

We have two versions of the controversy with the Pharisees5 (B and C), an antithesis from the (purely Matthaean) Sermon on the Mount (D) and a “dominical” saying in Luke (A). Questions of literary priority have been much debated in New Testament scholarship. The more common view is that Luke 16:18 represents “the most demonstrably authentic form of Jesus’ teaching”;6 that the Markan version of the controversy pericope7

5 The opening words       do not appear in MS D (see Hultgren 1979:119f.; Instone-Brewer 2002:131 n. 1), and are sometimes thought to have been added to harmonise with Matthew; aliter Banks 1975:146 n. 1, against Bultmann. 6 Wenham 1984:96; Fitzmyer 1998:99; aliter Vawter 1977:530. See also Isaksson 1965:69 on the view of Manson that Luke 16:18b is preferable to Mark 10:12 and possibly is a better translation of the Aramaic original, and that Luke 16:18 (= Q ) is the original form. He reviews also the views of McNeile and Bultmann (69–71), regarding these three as fairly typical views of how Mark and Matthew have in different ways modied the tradition. But this, for Isaksson, reects too uncritical and mechanical an application of the “Two Document Hypothesis”. Rather, Matthew may have had a tradition independent of either Mark or Q. Paul also had it available in 1 Cor. 7:10–11, so that the Church at Corinth was acquainted with it as early as about 55 B.C. (71). Matthew’s church, he argues, must have been acquainted with it a lot earlier. 7 Hultgren 1979:143 n. 88 takes vv. 10–12 not to be part of the original conict story, in that it turns to the remarriage of divorced persons. Instone-Brewer 2002:171–75 argues mildly for Matthaean priority, noting that the presentation in Mark is more sermonic, while that in Matthew is more comparable to a real rabbinic debate.

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(B) is prior to that of Matthew (C);8 and that the teaching in the Sermon is a separate tradition.9 However, others maintain the priority of the Matthaean tradition.10 This, however, raises a particular problem: that of the meaning and function of the porneia exception to the ban on divorce, which appears only in Matthew (in slightly different forms in C and D).11 As to the historicity of the attribution of the basic teaching to Jesus, there is considerable consensus. Sanders, for example, takes the prohibition of divorce to be part of the “bedrock information about Jesus”.12 What the precise form of that original teaching may have been is, of course, more difcult to ascertain.13 Beneath many of the technical literary arguments there lurks a broad issue regarding Jesus’ relationship to contemporary Judaism. While all would agree that the Jewish background must be taken into account in understanding the differences between Jesus’ teaching and those of the group(s) with which he is depicted as being in conict,14

8 E.g. Fitzmyer 1998:87; contra Vawter 1977:530. “What therefore God has joined together, let not man put asunder” (10:9, cf. Matt. 19:6) is also regarded by Fitzmyer 1998:99 as traceable to Jesus himself. 9 Fitzmyer 1998:83f. Vawter 1977:529, however, views Matt. 5:32 as related to Luke 16:18 (“the isolated Q logion”). 10 Isaksson 1965:112 concludes a chapter on the origins of the Matt. 19 controversy by rejecting the view that Matthew used Mark: “It is more likely that Mark 10.2–12 is a somewhat de-Judaized version of a very old marriage catechism used in the early Church (later: “in an oral or written form”), the contents of which agreed in the main with those of Matt. 19.3–12.” 11 Thus, Banks 1975:153, amongst many others, holds that the porneia exception must be an addition to the original words of Jesus in the light of the uniformity of the tradition in Mark 10:11, Luke 16:18 and 1 Cor. 7:10. On the difculty here, see Bockmuehl 2000:17 (quoted n. 161, infra). Isaksson (1965:75–92 = ch. 4) argues more comprehensively against the conventional wisdom that the exception is a Matthaean addition, to suit his Judaeo-Christian audience. 12 1990:4, 1985:256f. (including the Genesis proof texts in the controversy pericope). Cf., in effect, Isaksson 1965:72. 13 Isaksson 1965:72 approves the view of Bultmann that the original statement is that the husband makes himself guilty of adultery if he divorces his wife in order to marry another woman, though he sees this as transmitted in an oral tradition to the Matthaean (and Pauline?) churches (found in Matt. 19:9, despite the fact that it includes the porneia exception), rather than via an early literary source (Q ). Fitzmyer 1998:87f. argues that the porneia exception does not go back to Jesus (cf. Hultgren 1979:144 n. 103, with literature on both sides). Hultgren 1979:120f. argues on linguistic grounds, including the absence of   in LXX but its presence in Josephus, Paul and hellenistic literature, that Matt. 19:9 (“What therefore God has joined together, let not man put asunder”) originated in the Hellenistic church. 14 Reected, notably, in Fitzmyer’s formulation (infra, n. 119), that Jesus is challenged to say whether he stands with the Pharisees or the Essenes.

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there is considerable difference in the views taken as to the extent of Jesus’ divergence from his contemporaries. Particularly sharp focus has recently been given to this issue by Instone-Brewer, who argues not only that the Matthaean position (including the porneia exception) is original, but seeks to read the other synoptic sources in the light of it, viewing Matthew’s qualication as implicit in all the others (which he maintains indulge in varying degrees of abbreviation).15 Various aspects of Instone-Brewer’s position are discussed below. For the moment, it may be noted that he seeks to isolate from the issue the Pauline text which itself gives an account of Jesus’ teaching, and which in literary terms certainly stands as our earliest evidence:16 I Cor. 7:10–11 “To the married I give charge, not I but the Lord, that the wife should not separate from her husband (but if she does, let her remain single or else be reconciled to her husband)—and that the husband should not divorce his wife.”

While this is normally regarded as a rejection of both divorce and remarriage in principle,17 Instone-Brewer (2002:197–201) takes it, in conformity with his interpretation of the Matthaean position, as rejecting only one form of divorce, namely the hellenistic divorce by separation, which he equates with the Hillelite position on divorce (the object of Jesus’ attack).18 In short, Instone-Brewer offers a radically new thesis, which denies that either Jesus, Paul or the authors of the synoptics were opposed to divorce in principle. Rather, they sought (substantially) to restrict it to something comparable to the Shammaite grounds. Instone-Brewer also evaluates the more specic teachings in the Synoptics against the Jewish background, offering here too an interpretatio hebraica which reduces (but does not eliminate) the differences between

15

See esp. Instone-Brewer 2002:153–55, 159–67. Fitzmyer 1998:80 sees this as the earliest attestation of the attitude of Jesus. 17 E.g. Lövestam 1981:62. 18 He also argues at 2002:207–12 that Rom. 7:2 and 1 Cor. 7:39–40, which mention termination of marriage by death only, should not therefore be taken to exclude by silence termination by divorce. In his article on 1 Cor. 7 (2000), he argues that Paul in 1 Cor. 7:39 quotes (and adapts) the traditional formula of the Jewish divorce deed (but here applied to widows), granting freedom to remarry within a certain class. See also Instone-Brewer 2002:207–09 (taking 1 Cor. 7:39–40 as a rejection of levirate marriage, following Fee). 16

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them. For this purposes he derives from the synoptics the following discrete propositions:19 1. A man who marries an invalidly divorced woman commits adultery (Matt. 5:32, Luke 16:18).20 2. A man who invalidly divorces his wife causes her to commit adultery (Matt. 5:32, variants of Matt. 19).21 3. A man who invalidly divorces his wife and marries another commits adultery (Matt. 19:9, Mark 10:11, Luke 16:18).22 4. A woman who invalidly divorces her husband and marries another commits adultery (Mark 10:12).23 For the most part, these questions focus on remarriage after divorce. At Qumran, we shall argue, the concern extends to remarriage after death (consecutive polygamy). Yet the New Testament formulations suggest a further concern, with divorce itself. And both in the New Testament and the Qumran texts there are suggestions that some circles regarded

19 2002:150–52. See also the earlier analysis of McNeile 1952:65, quoted by Isaksson 1965:68: “(a) The man who divorces his wife and marries another woman commits adultery (Matt. 19, Mark, Luke); (b) The woman who divorces her husband and marries another man commits adultery (Mark); (c) The man who marries a divorced woman commits adultery (Matt. 5:32, Luke); (d) The man who divorces his wife causes her to commit adultery (Matt. 19, Mark, Luke)”. Isaksson 1965:72 takes (a) as the primary teaching of Jesus (found in Matt. 19:9), and takes it to manifest the principle of indissolubility, from which the disciples derived the other propositions, so that “the different forms of the logion are the result of a primitive Christian halakhah discussion on divorce, starting from Jesus’ prohibition of it” (74). Thus Matthew in 5:32 gives the answer to the question whether it is permissible for a man to divorce his wife even if he did not seek to remarry. 20 Cf. McNeile (c). This, Instone-Brewer (2002:127–29) argues, is recognizable in Jewish society, citing M. Gitt. 8:5, where a woman who has remarried (even in good faith) after an invalid get must “leave” (axt) both men; it goes on immediately to state separately that she needs a get. We may speculate on whether originally the emphasis was simply on the rst. 21 Cf. McNeile (d), citing Matt. 19, Mark, Luke. Instone-Brewer takes this to assume that the woman remarries (but is not aware of Derrett’s 1970 argument); if so, the same considerations apply as in (1). 22 Cf. McNeile (a). This is difcult in Jewish terms because of the Jewish denition of adultery. Strictly the man here has committed polygamy, but Jesus is teaching that polygamy is illegal, and not merely immoral. Hence Mark’s stress on “against her” (  ): Instone-Brewer 2002:151. 23 Cf. McNeile (b). This does t the Jewish environment in the light of what the woman could do in Mishnaic law and the practice evidenced in P. Hev. 13. Moreover, a woman would be subject to the same negative command (not to remarry in these circumstances) as a man under general rabbinic principles: Instone-Brewer 2002:152.

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even marriage as problematic, preferring (for theological reasons) the ideal of celibacy. We shall review both the Qumran and New Testament texts with an eye to all these questions, taking account of the broader Jewish context in which they were written. 3. Polygamy and Divorce in the Qumran Rule Books Before evaluating the New Testament sources against their Jewish background, it is necessary to revisit the vexed question of the stance(s) found in the Qumran texts. Much discussion has been devoted to the Damascus Document (as found already in the Cairo Genizah) and the Temple Scroll (11QT, hereafter TS). In the former (CD IV:20f.), the author castigates the community’s opponents for “taking two wives24 in their (masc.) lives” (hyyjb yçn ytç tjql). He supports this with three proof texts: Gen. 1:27 (“male and female he created them”), Gen. 7:9 (“two by two,25 they went into the ark”), and (“of the nasi it is written”) Deut. 17:17 (“he shall not multiply wives for himself ”). The position of the king is given special treatment in the Temple Scroll (57:15–19), which regulates royal marriages: “. . . and he shall not take upon her another wife, for she alone shall be with him all the days of her life (hyyj ymy lk). But should she die, he may (?26) take unto himself another . . .” Vermes (1975:51) has noted four different interpretations of IV:20f.:27 (a) a ban on both (concurrent) polygamy and divorce; (b) a ban on

24 The conventional translation. However, in the Hebrew Bible, “taking a woman” does not necessarily imply a marital relationship. See Jackson 2006:95f. Aliter, Gruber 2001:178 n. 14, 180 n. 22, in respect of Lev. 18:18. But the case is far from conclusive even there: women of different marital status within a household may harbour jealousy, as seen from the narrative of Abraham, Sarah and Hagar. More generally, though Lev. 18 has become hallowed as one of the sources of the Church’s “Table of Afnity and Consanguinity”, dening impermissible marriages, one can hardly imagine that a man who, for example, “uncovered the nakedness” of his half sister (even consensually, unlike Amnon) could defend himself on the grounds that they were not married! And of course, Lev. 18 extends to forms of “abomination” which (in those days at least) were well beyond the conceptual boundaries of marriage (Lev. 18:22–23). 25 The biblical “male and female” is here omitted, presumably because the phrase is quoted in Gen. 1:27, immediately preceding. 26 This may well be not merely permissive but mandatory. Cf. Davies 1987:77, 78. See the argument below, p. 181. 27 For the range of views on “taking two wives in their lifetime” in the earlier literature; see also Winter 1956:76f.

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polygamy alone; (c) a ban on divorce alone;28 (d) a ban on any second marriage (even after the death of the rst wife), i.e. consecutive polygamy. He noted that (a) represented the majority view (to which he himself had originally adhered), but then argued in favour of (b), largely on the basis of the proof texts.29 He accepted that both (a) and (b) involved the need to change the masculine hyyjb to the feminine ˆhyyjb (1975:55f.), and that the most natural interpretation of the unamended text was (d).30 Others have noted the possibility that hyyjb is a generic masculine, covering both genders, though this in itself does not lead to a consensus as to its meaning. Mueller (1979–81:253) takes it to prohibit both polygamy (in the light of his interpretation of the Temple Scroll) and remarriage after divorce, by either spouse. Schiffman takes the same view,31 though he thinks it most likely that CD allows divorce itself, albeit “perhaps only in cases of adultery as was the view of the House of Shammai and the Karaites”.32 Schiffman does not apparently contemplate the possibility of consecutive polygamy: he writes that the masculine sufx “may refer to both parties to the divorce” (emphasis supplied). But why only “to the divorce”? If men are prohibited from marrying two wives “in their lifetimes”, that would equally prohibit a widower from remarrying. Most recently, Gruber has argued that

28 Attributing this to R.H. Charles; see, however, Fitzmyer 1978:108* n. 24, denying that Charles took this view. 29 Vermes 1975:53f. He concedes that Gen. 1:27 is ambiguous in this respect, but argues that Gen. 7:7–9 can be directed only against polygamy (Vermes 1975:54), and that the citation of the law of the king is understood in this context to require monogamy (and explicitly so in the Temple Scroll), as against the 18 wives of M. Sanh. 4:2. He argues also that the further reference in CD 5:2–5 to David not having seen the sealed book of the law (on which see also Gruber 2001:184f.) functions to excuse his polygamy. For a detailed critique of Vermes’ arguments, see Davies 1987:81–83. 30 1975:52, citing Murphy-O’Connor 1970:220 for the view that the masculine sufx should be taken at face value and yields perfect sense: “The text does not forbid having two wives simultaneously. It goes much further, and forbids two marriages in a single lifetime, be it after the death of a spouse or after divorce”. Cf. Davies 1987:ff., replying to Vermes’ and Yadin’s critiques of this position. Vermes also observes “a possible, if ephemeral, parallel in the Hellenistic churches founded by Paul, citing 1 Tim. 3:2, 12; 5:9, Titus 1:6”. On this, see infra, 220f. 31 1992:217: “The text seems to prohibit not only polygamy, but even remarriage after divorce.” 32 Cf. Instone-Brewer 2002:67, approving the proposition, derived from Schiffman, that “. . . both a man and a woman are prohibited from remarrying their spouse after a divorce”, despite his position that there is no disapproval of divorce as such at Qumran. See also Fitzmyer 1998:96.

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even the masculine sufx is compatible with an interpretation (which he supports on other grounds)33 that the text refers to (concurrent) polygamy, in that “the authors of the DSS attempt to write their Law Books in Biblical Hebrew”, where “the feminine dual is expressed by the pronominal sufxes m/hm” (citing 1 Sam. 6:10).34 But if the text is directed (even if only in part) against polygamy, why use a dual form (opening up the possible argument that two wives are banned, but more than two are not!35)? Instone-Brewer broadly supports Vermes’ view (a ban only on concurrent polygamy), and argues that there was no principled opposition to divorce at Qumran (contrary to the views of many others36); indeed, “Qumran Exegetes Did Not Criticize Divorce or Remarriage”.37 Following an old38 argument of Louis Ginzberg, he maintains that this does not depend upon amending hyyjb to the feminine form,39 nor does it entail concluding, from the masculine reading, that “divorce

33 On his view of the original meaning of Lev. 18:18 (maintained in CD), see infra, n. 43. Gruber maintains that this is central to the understanding of both CD IV:20f. and TS 57:15–19. On this, see the comments below on this view as advanced earlier by Ginzberg and now by Instone-Brewer. 34 2001:182f. At 2001:178 n. 17 he also cites Tosato 1984 in support of this reading of both Lev. 18:18 and CD. He also notes there the dissent of a former Karaite Chief Rabbi in Israel from the view that Lev. 18:18 refers to polygamy (in the light of the resulting conict with Deut. 21:15), despite the views of earlier Karaite scholars cited by Ginzberg. 35 I am reminded of the argument of Yaron 1970:553 (to which Loewenstamm responded: 1972:543) that the formula “X or (X + 1)”, as in “two or three witnesses” (Deut. 17:6, 19:15), is used “to forestall any argument—however feeble or frivolous” that two is a maximum as well as a minimum—though further argument is needed to show that three is not here a maximum: see further Jackson, “Two or Three Witnesss” in 1975:153–71. 36 I.e., most of those interpreting CD IV.20f. as (a) or (d). On the criterion of the proof texts, Fitzmyer 1998:97 asks: “Why could not the author have used texts that originally envisaged only polygamy to prohibit divorce as well?” (1978:109). 37 The title of his section at 2002:65–68. Instone-Brewer does not take account of the views of Isaksson summarised infra 179f., though at 170 n. 78 he acknowledges that Isaksson “argued persuasively . . . that they did marry for a few years, in order to full this command [of procreation], and then gave up their wives”. 38 Instone-Brewer 2002:68 cites the argument from the 1976 English translation of Ginzberg 1922, acknowledging that Ginzberg’s explanation “seems to have been relatively ignored”. 39 Instone-Brewer 2002:63 n. 23 notes that considerable emphasis is placed on the feminine hyyj in the Temple Scroll in defence of the emendation of CD (cf. Yadin 1983:I.356) and observes at 2002:67 that Murphy-O’Connor and Schiffman are the only scholars who still defend the unamended reading. But the feminine is clearly appropriate to the (different) context in TS.

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was effectively prohibited because a man could not remarry during his lifetime”.40 Rather, he seeks to interpret CD IV:20f. in the light of Lev. 18:18: “And you shall not take a woman as a rival wife to her htja, uncovering her nakedness in her lifetime (hyyjb)”. This, he claims, was regarded by the Qumran exegetes as a (self-evident41) proof text outlawing polygamy (2002:62).42 It was not construed as restricted to marriage to two sisters; rather, Ginzberg argued (as does Gruber now43), the Qumran exegetes read htja as meaning “other”.44 This supposed Qumran exegesis of htja45 is not the only substantial difculty in this reconstruction. First, and fundamentally, how can it

40 2002:65–68, pace the argument of Yadin 1972:98 that even if we retain the masculine it forbids only remarriage (whether after death or divorce), but not divorce in itself. Instone-Brewer 2002:69f. is also attracted to the nit-picking view of Ginzberg (1976:20), that “he is permitted to marry a second woman after he is divorced from his rst wife, since he thus has only one wife”, i.e. the rule only applied while the rst woman was still a ‘wife’ (Instone-Brewer 2000b), and seeks to explain its basis in Lev. 18:18. 41 At 2002:65, Instone-Brewer notes that the allusion in CD to Lev. 18:18 is not accompanied by any explanation: “It is assumed that the reader understands the text and its importance”. 42 Indeed, he notes at 2002:63 that Rabin (1954:16f.) took CD’s “allusion” to Lev. 18:18 as supporting the amendment to ˆhyyjb, so that divorce and remarriage were possible but only after the death of the rst wife. 43 2001:178–89, esp. at 178f., 185f., citing htja la in Exod. 26:3 (bis), 5, 6, 17, Ezek. 1:9, 23, 3:13 and the parallel masculine expression. However, the context speaks mildly in favour of taking htja as “sister” rather than “other”, in that it follows a sequence of incestuous relationships (though what follows moves to non-incestuous forbidden relationships). Against the assumption that the focus of Lev. 18 is on marriage at all, see n. 24, supra. 44 Instone-Brewer 2002:69, noting (n.40) that Ginzberg cites Exod. 26:5, 6, 17, though he prefers to see inuence from the Aramaic rja (?). Gruber 2001:187 sees trja tça in 57:17 as a “periphrastic exegesis of the biblical Hebrew” (htja la hça) of Lev. 18:18, and notes that TS 57:18 also concludes with trja. 45 Ginzberg takes this interpretation to be required by a supposed conict in Qumran interpretation between Lev. 18:18 (if htja is given its normal meaning) and Lev. 18:16. Lev. 18:18, when interpreted in the light of the “principle of equal application” (see below), would imply that “a woman may not marry her husband’s brother during the lifetime of her rst husband” but “would be able to marry him after her husband died” (2002:69). However, Lev. 18:16 (not uncovering the nakedness of a brother’s wife), is taken to ban marriage with a brother’s wife even after the brother’s death. Therefore, htja has to be given a meaning other than “her sister”. Apart from the fact that this interpretation of Lev. 18:16 would exclude the law of the Levirate, we may note that the proposed reinterpretation of htja hardly solves the supposed difculty: “another woman” could include a sister. Nor is it clear that Lev. 18:16 refers exclusively to marriage with a brother’s wife, as Instone-Brewer (2002:69 n. 39) assumes. It may be self-evident that he cannot marry the wife of his brother; it is far from self-evident that he may contemplate having a relationship with her. Cf. n. 24, supra.

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be that a text (CD IV:20f.) which has three proof texts in favour of monogamy omits the text (Lev. 18:18) which, on this understanding, is far more explicit on the matter than any of the three actually cited?46 Secondly, if there is indeed an ‘allusion’ to Lev. 18:18, how are we to explain CD’s use of the masculine hyyjb rather than the feminine (to which it is taken to allude)? The puzzle is hardly assisted by the argument of Instone-Brewer (2002:71) that the Temple Scroll (which was unknown to Ginzberg) also alludes to the feminine hyyjb in Lev. 18:18, when it requires that the king’s consort shall be with him “all the days of her life” (hyyj ymy lk).47 The rst difculty is not addressed by Instone-Brewer. On the second, he adopts and elaborates Ginzberg’s argument as providing a “comprehensive and coherent” explanation of CD IV:20f., which “allows the text to be understood in an unemended form and without any of the difculties associated with the other texts” (2002:72). It is that the Qumran exegetes applied a “principle of equal application” to male and female, as evidenced by their explicit extension in CD V:9–11 of the ban on aunt-nephew marriages (Lev. 18:13) to uncle-niece marriages: “The law of incest (twyr[h fpçm) is written in terms of males, but it is the same for women (yçnh hkw)”.48 But this, in combination with Ginzberg’s interpretation of htja as “other” woman, would surely generate a rule that women should not take more than one husband (in their lifetimes), which could only be meaningful as a ban on a widow or divorced woman from remarrying (which neither Ginzberg nor Instone-Brewer wishes to maintain). Rather, Instone-Brewer (here with Schiffman) argues that hyyjb is used to include both male and female. But this hardly meets the objection. If we apply the “principle of equal application” to Lev. 18:18 (as understood by Ginzberg), then (i) a man may not marry another woman besides his wife (Lev. 18:18, understanding htja as “other”); and (ii) a woman may not marry

46 To this, Mayer Gruber responds (in personal correspondence): “I am equally convinced that she/he/they totally understood that they would never convince their Jewish opponents if they quoted a verse which their opponents took to be a prohibition against marrying two biological sisters. Consequently, they invoked the Garden of Eden and the Story of Noah.” 47 On this, see Instone-Brewer 2002:71, where he seeks to apply to the Qumran interpretation of the law of the king both interpretations of htja in Lev. 18:18: he should not marry another, and the wife he does marry should be a “sister” in the sense of a “fellow Israelite”. 48 Translation of Davies 1983:245.

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another man besides her husband, a possibility which could arise only if she were a widow or divorcee. Ginzberg nevertheless argued (1976:20) that a man is permitted to remarry after divorce in CD, “since he thus has only one wife”, stressing that Lev. 18:18 gives the reason as rivalry, thus two wives at once (Instone-Brewer 2002:69f.). It is to this that hyyjb alludes, according to Ginzberg, thus indicating that it applies only while the rst spouse is alive, and thus forbids concurrent polygamy but allows consecutive marriages (including, Instone-Brewer argues, the case where the rst marriage is terminated by divorce). The complexity of this reconstructed argument, and many of the assumptions on which it is based, go far beyond anything attested in the texts, and anticipate a style of argument hardly found before the Gemara of the Amoraim. But Instone-Brewer’s claim that “Qumran Exegetes Did Not Criticize Divorce or Remarriage” is not based exclusively on this argument. He is able to point to three additional texts which explicitly mention divorce, and appear to take, at the least, a neutral stance to it: (1) Temple Scroll 54:4–5 afrms the validity of vows of (widows and) divorcees. However, such divorces may have been effected before the women joined the community. (2) Temple Scroll 66:8–11 is a version of Deut. 22:28–29, with its ban on divorce in the case where a rapist49 is required to marry his victim. It may well be that in its original context this “suggests that divorce was normally allowed” (Instone-Brewer 2002:66); it hardly follows that this implication is to be read into the norms of Qumran. (3) Finally, there is the fragmentary CD XIII:15–17, which appears to give a role to the mevaker çrgml. But there is no agreement as to whether this refers to divorce at all.50 Instone-Brewer therefore concludes that “the Qumran documents do not say anything signicant about divorce or remarriage” (2000:72). He

49

See further Jackson 2006:368–71. See Fitzmyer 1978:109–10*, arguing that there is no object of çrgml, and noting the interpretation that it refers to expulsion from the community; the context is that of trading with children of the pit. See also Davies 1987:80f. Note also the use of the term in the context of disinheritance: see p. 126, supra. 50

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accepts from the Temple Scroll that “the king would be expected to live up to this ideal of lifetime marriage, and the other people might be expected to emulate him” (2002:71). But is “expected to emulate” the kind of modality51 we are to expect in CD, with its highly polemical, oppositional stances towards the practices of its opponents? The issue, in my view, needs to be reviewed more broadly, against the eschatological beliefs of the sect and their impact on the marriage regime it adopted. This, I shall argue, supports a ban on any second marriage (even after the death of the rst wife),52 and also explains why the king was exempted from it.53 It is in the context of their eschatological beliefs54 that Isaksson seeks to explain the apparent conict between the information provided by Pliny, Philo and Josephus on Essene celibacy,55 and the evidence of the

51 See further s.5, below. Cf. the argument of Davies 1987:84 on whether an Essene who had died childless would be permitted to remarry. He observes: “. . . religious societies with strict rules undergirded by religious doctrines do not necessarily bend to the demands of fairness, logic or mercy, and certainly appear less generous in the matter of sexual requirements.” 52 (d) in Vermes’ review, supra p. 174. 53 Even without such an explanation, the onus must be against those who have argued, with more or less conviction, that the rules for royal marriage in the Temple Scroll should be regarded as applying to the community as a whole. See Vermes: “if the king was to be bound by such a law, so must every commoner” (1970:37); Fitzmyer 1978:105*: “The chances are” that it applied to all, not just the king. See also Mueller 1979–81:251. The most reasoned case is made by Daube, who argues that though it clearly referred to the ruler only, Deut. 17:17 was added because it was superior to the other texts in containing a precept, not merely an example (1956:85f.). He notes (1956:86, 299) the use of a rule regarding “the King” to refer to the whole congregation in CD 9:7, and the dictum of Shimon ben Yo˜ai in Mishnah Shabbat 14:4 that all Israelites are to be considered the children of kings. However, he sees the application of universal monogamy, at least in the New Testament context, as assuming an eschatological context: see Daube 1956:300. Instone-Brewer accepts at 2002:64 that it is impossible to know whether the TS (as opposed to CD) regarded monogamy as mandatory for all Jews. See also Davies 1987:77f., infra n. 60; Schiffman 1992:216, 217f. 54 Their views, Isaksson maintains (1965:64f.), were “entirely due to the basically eschatological ideology of the Qumran community”. Davies 1987:83–85 takes a similar view (though rejecting any “need to invoke fanciful notions such as holy war injunctions”; Isaksson is not cited), noting “evidence that in fervent expectation of the eschaton some early Christians abstained from marriage” (1987:84). 55 Isaksson 1965:45–57, on Pliny, Historia Naturalis 5.15; Philo, Hypothetica 11.14; Josephus, War 11.8.2, 13 (aliter Gruber 2001:173 on the assumed identication of the Qumran community with Essenes); on these sources, and their misogynistic bias, see also Magness 2002:164–66. At 168–85, Magness reviews the archaeological evidence, including female and infant skeletons at Qumran (and comparison with other sites), and concludes that it largely supports these literary sources: “. . . the archaeological

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scrolls themselves, which clearly, if not universally, appear to countenance marriage.56 According to the War Scroll, males from the age of 25, Isaksson argues, were expected to be celibate, in order not to be disqualied from serving in the (imminent, eschatological) holy war: soldiers must go to battle in a state of purity, not having had relations with women the previous night. However, those between 20 and 25 did not go to war, and for them, Isaksson argues (1965:55f.), marriage was permissible. He assumes that the sect would not have departed from Deuteronomy to ban divorce entirely, though he claims that the soldier reaching 25 did not need to divorce his wife (1965:62f.). In this context, termination of marriage by the wife’s death (commonly, in childbirth) may well have been more common than termination by divorce, and this may well explain why the sectarian documents are more explicit on the former than the latter. Nevertheless, the ideal state is that of the exclusivity (and indissolubility) of the marital relationship: Gen. 1:27 is described in CD IV:20f. as “the foundation of creation” (which, by implication, the eschatological age will recapitulate).57 Hence, Isaksson (1965:60) takes the substantive message to be: “A man commits fornication58 whether he has two or more wives at the same time or re-marries after his wife’s death or after his divorce from her.”59

evidence suggests only minimal female presence at Qumran and an absence of families with children.” 56 See Magness 2002:166f., on the evidence not only of CD but also 1QSa (the “Rule of the Congregation”), The War Scroll and the Temple Scroll. Schiffman 1992:228 also observes the absence of celibate or ascetic tendencies in the Temple Scroll. By contrast, Magness notes that the Manual of Discipline provides a (here, strong) argument from silence in support of celibacy: the virtually complete absence of any mention of women throughout this disciplinary code. Cf. Instone-Brewer 2002:62 and n. 16. 57 Daube 1956:85f. takes this “principle of creation as itself referring to the ideal, original creation of the androgynous Adam” (see further infra p. 185). Isaksson 1965:59, on the other hand, argues that Gen. 1:27 can have been used for different purposes in Mark and CD, noting that while in Mark Gen. 1:27 is combined with Gen. 2:24, in CD it is combined with Gen. 7:9 (1965:59). Sanders 1985:258–60 cites Dungan 1971:117 on the “expectation of the imminent return of the Time of Creation” and expresses some reservations, concluding however that “the implied expectation of a new and better order is itself eschatological”. 58 On the wide range of sexual offences covered by the term zenut (used in this passage of the sexual practices of the sect’s opponents), and its inclusion of incest (notably, uncle-niece marriages, contrary to Lev. 18:13), said to have been particularly common amongst the leading priests in Jerusalem), see Isaksson 1965:60; Vermes 1975:50; Fitzmyer 1978:107f.* (relating it also to Jub. 7:20–21); Mueller 1979–81:254f. Davies 1987:82 takes it to refer in CD to any marriage not for the purposes of procreation. 59 Isaksson 1965:60 (and more generally 57–63).

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In this context, special rules for the king (who will lead such a holy war) are hardly surprising.60 Individual (future) soldiers may be expendable: it may be expected that a certain proportion may die without issue before reaching military age. But if the king were to die without issue, the eschatological leadership would disappear with him. Hence, he is not to divorce his wife:61 “for she alone shall be with him all the days of her life” and if she does dies, he is to take a new wife (Temple Scroll). It is thus not the case that CD’s ban on consecutive polygamy62 is inconsistent with the Temple Scroll”63 on the grounds that it is mandated for the king. Winter’s earlier observation,64 that if the intention had been only to ban (concurrent) polygamy, there would have been no need for hyyjb, remains sound. A ban on consecutive polygamy reinforces the view that marriage, where permitted, is itself a concession, required for pragmatic reasons in order to support the eschatological project. That concession is itself to be strictly conned; the ideal remains celibacy. 4. Sectarianism, Theology and Biblical Authority Second Commonwealth sectarianism, on the evidence of both Qumran and the New Testament, is intensely oppositional. It was not a matter of moving (physically as well as religiously) away from the mainstream and minding one’s own business. Following a long tradition of claims in the Hebrew Bible regarding succession to the Abrahamic covenant (instituting some, excluding others),65 second commonwealth sects claimed

60 Davies 1987:77f. is rightly dubious about extension beyond the king, noting that both the Temple Scroll and the Mishnah give him a special legal status, and arguing that this would make sense in the Temple Scroll if the king’s marriage was regarded as “existing for special purposes beside procreation alone”. See also Gruber 2001:185f. n. 47. 61 Cf. Fitzmyer 1978:105*, idem, 1998:93; Schiffman 1992:216; Instone-Brewer 2002:71. Vawter 1977:533, on the other hand, maintains that the Temple Scroll says nothing about divorce but is directed against royal polygamy. But on this view, “for she alone shall be with him all the days of her life” is entirely redundant. 62 As argued by Murphy-O’Connor, quoted in n. 30, supra; Fitzmyer 1998:96. 63 Yadin 1972:98, Vermes 1975:52f., 54. It is thus not necessary to pursue the methodological issue raised by Murphy-O’Connor (1972:99f.), of the legitimacy of seeking coherence between the different sectarian documents. 64 1956:77, cf. Fitzmyer 1978:109*. 65 See further Jackson 2000:231–70 (Ch. 9: “ ‘Covenant Renewal’ and Narrative Structure”).

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that they alone were the true successors, to the exclusion of their Jewish contemporaries. Such claims involved far more than differences on halakhah in matters of technical detail: they entailed claims of spiritual superiority, and often the possession of esoteric knowledge—claims intensied by eschatological expectations.66 At the same time, there remained a common language for the expression of difference: all had to be rooted in the Hebrew Bible. We may summarise the sectarian attitude as “Holier than Thou”. The criteria for such holiness were themselves taken from Scripture. A text sometimes cited in this context is Exod. 19:6: “you shall be to me a kingdom of priests”, taken to mean that the standard expected67 of all the elect was that of the priesthood.68 Thus, Isaksson 1965:9 writes: “Just as the priests, in order that they should be ritually clean during their service, were not allowed to make themselves ritually unclean by sexual intercourse, the full members of the Qumran community at any rate live in celibacy.” It is no necessary objection that CD recognises a ranking of members of the community as priests, Levites, Israelites

66 There is, however, a certain problem of liminality attaching to the period when the eschaton is regarded as imminent, but has not yet arrived. Cf. Daube 1956:300: “John is Elijah and the prophet promised in Deuteronomy. Miracles are performed (by Jesus), the gospel is being preached, the age foretold in the Scriptures is dawning. The old values are changing; what was great will be small and the small will be great. At this transitional stage however, much violence is still done to the kingdom.” We may need to view in that light the antitheses of the Sermon on the Mount, including that on divorce, given the temporal limitation in Matt. 5:18. The connection is even clearer in the context of the Lukan logion on divorce (quoted at 168, supra), that of violence to the kingdom, on which see Daube 1956:ch. VII, esp. 297–300. The invocation of John as the terminus of validity of “the law and the prophets” is paralleled in Matt. 11:12–15: “From the days of John the Baptist until now the kingdom of heaven has suffered violence, and men of violence take it by force. For all the prophets and the law prophesied until John; and if you are willing to accept it, he is Elixjah who is to come. He who has ears to hear, let him hear.” On the signicance of the equation with Elijah, in the light of his identication in a rabbinic source with the Deuteronomic “prophet like Moses”, see Daube 1956:296f., noting in particular the belief that Elijah, when returning to proclaim the messianic age, would concern himself with the purity of the nation. The nal clause, “He who has ears to hear, let him hear”, may well evoke the elav tishmexun of the biblical text, which itself was used as the basis of the rabbinic interpretation of the authority of such a prophet. See further, 27, supra. 67 Notably, Lev. 21.13–15, quoted infra, n. 72. Bockmuehl 2000:18 notes that the Levitical passages reect “stricter regulations for priests”. 68 Notably, Rev. 1:5–6: “To him who loves us and has freed us from our sins by his blood and made us a kingdom, priests to his God and Father, to him be glory and dominion for ever and ever”, cited in this context by Fitzmyer 1998:101 for “the further implication of the general priestly character of Christian disciples”.

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and proselytes.69 If Israelites must act like priests, those of higher rank70 might be expected to act like High Priests.71 In discussing Paul’s use of the “one esh” doctrine in 1 Cor. 6:16, Derrett (1970:374) observes: “In effect all Israel must practice the scrupulousness of the priests (Lev xxi.7, 13–15) . . .”.72 The eschatological signicance of such a standard derives from the fact that a version of the levitical rules is applied to the priesthood of Ezekiel’s new temple.73 Similarly, Fitzmyer (1998:101) broadly approves Isaksson’s approach (taking “Jesus’ view of marriage as indissoluble as an extension of an Old Testament attitude towards members of priestly families who were to serve in the Jerusalem temple”), and sees it as consistent with “other considerations of the Christian community as the temple in a new sense”.74 Yet it is a feature of the texts on marriage and divorce, reviewed thus far, that they do not cite either Leviticus or Ezekiel, but rather emphasise the primordial legends, of creation and the ood, of Genesis (CD 4:20f., indeed, characterising Gen. 1:27 as “the foundation of creation”, hayrbh dwsy). However, the combination of texts cited differs from document to document, and some have seen theological differences reected in such choices. In particular, the New Testament controversy pericope (in both Mark and Matthew) quotes both Gen. 1:2775 and 2:24,76

69 Förster 1964:131, citing XIV:3–12 (though this refers to the process of enrolment, and may not imply a subsequent hierarchical division). 70 Where admitted: “neither Jew nor Greek, neither bond nor free, neither male nor female” (Gal. 3:28). 71 Schiffman 1992:214f. notes that the Temple Scroll seeks to make the king like a High Priest, who may not marry a non-Israelite. 72 Lev. 21:13–15: “And he shall take a wife in her virginity (bivtuleyhah). A widow, or one divorced, or a woman who has been deled (˜alalah), or a harlot (zonah), these he shall not marry; but he shall take to wife a virgin of his own people (betulah me{amav), that he may not profane his children among his people; for I am the Lord who sanctify him.” For Lev. 21:7, see n. 93 infra. 73 See further infra, at 187 and n. 91, on the signicance here of Ezek. 44:22. 74 Citing 2 Cor. 6:14–7:1; 1 Cor. 3:16–17; Eph. 2:18–22; see also 1998:102 on 1 Pet. 2:5, 9. 75 In the LXX, Gen. 5:2,      , is identical to the phrase in Gen. 1:27, though the MT of Gen. 5:2 uses a pronominal sufx rather than the otam of Gen. 1:27. There are other differences between the traditions in the MT (not relating to the phrase quoted in the Synoptics), notably the fact that God names them (the couple) adam, whereas there is no naming in the Gen. 1 account. Gen. 5 in this respect conates elements of the Gen. 1 and 2 accounts (though in Gen. 2 it is Adam who names Eve). Daube 1967:72 suggests that the androgynous interpretation may itself have been a reaction to the apparent conicts in the biblical text. 76 Daube 1956:71, 73 argues that in Mark 10, the argument from Gen. 1:27 originally stood alone; aliter Banks 1975:148 and others there cited.

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while CD omits Gen. 2:24, but cites instead the entry into the ark “two by two” (Gen. 7:9),77 as well as the Deuteronomic law of the king. Over 50 years ago, both Paul Winter and David Daube noted the “androgynous” interpretation of the creation myth,78 and its signicance for the claim to the indissolubility of marriage made in these sources.79 Daube (1956:78) is quite explicit in arguing that Gen. 1:27 and Gen. 2:24, whatever their literary relationship in the controversy pericope,80 both allude to the androgynous theory. A different view, however, is taken by Derrett (1970:375), who seeks to distinguish the theory of androgynous creation (derived from Gen. 1:27) from the one esh doctrine (Gen. 2:24), on the grounds that the latter implies the mating of two beings.81 This, of course, is true; the argument, rather, is that by virtue of such mating, the original “one esh” is thereby (symbolically) recreated. For Derrett, however, the “one esh” doctrine has a different signicance: the belief that even casual intercourse creates a relationship rendering sinful any further intercourse with others during the partner’s lifetime.82 Whereas, Derrett suggests, the Rabbis interpreted the union of Adam and Eve as a marriage, the New Testament takes the one esh doctrine to apply

77 Thus implying that the marital unit consists in two persons. In the New Testament, this is conveyed by quoting the LXX version of Gen. 2:24, with its  !" (where the MT has just a plural verb). See Daube 1956:81; Banks 1975:147; Hultgren 1979:121. 78 Neither claim that this was in the minds of the original author(s). Indeed, both see this reading as inuenced by Greek thought: see Daube 1956:80f.; Winter 1956:72. Winter later (1958:260) noted Daube 1957:125f., from which he concluded that this theory “may safely be held to be of earlier date than the rabbinic utterances quoted in my previous article”. On the doctrine as found already in Philo, O.M. 24,76, see Daube 1956:73f., 79 (for whom Plato himself “no doubt had it from the Orient”); Winter 1956:82. 79 As Winter 1956:82 put it: the completeness intended by God in creating an original bi-sexual creature could be restored only by the union of one man and one woman. 80 See n. 76, supra. 81 It may also be noted ( Jackson, 2007) that whether or not we take ‘one esh’ to be a reference to marriage, it is clear (even on a non-critical view) that the creation event is primal, ante-diluvian, while the ‘one esh’ interpretation is addressed to postdiluvian society. Daube’s view, that cleaving to one’s wife itself simulates the original, androgynous state of creation (1956:72), is not incompatible with (though it does not require) the view that it is a reference to marriage. Certainly, the fact that it follows departure from the parental home suggests that marriage is the assumed context. 82 Derrett 1970:375: “This one esh is made by nothing but sexual intercourse, and there is no sexual intercourse which does not make one esh.” It is a violation of this, not marriage as such, that makes it sinful to engage in any of the activities designated by naxaf.

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even where there was no marriage at all.83 The implications of this for the substantive teachings are considered below. Daube (1956:74) sees the androgyny doctrine (in Philo, Paul, and here in Mark) as esoteric (we may say: sectarian), and draws a distinction in this regard between Jesus’ arguments in Mark and Matthew.84 For this, he relies upon the MS tradition which omits “and be joined to his wife” from the Markan version.85 With that addition, he argues, the androgynous Adam is abandoned. In Matthew, Jesus is talking to the Pharisees, and there is no mystery about divorce. On the other hand, there is a textual doubt about      in Mark 10:2,86 and Daube stresses the radical conclusions regarding the desirability of marriage as such, derived from the esoteric doctrine, in vv. 11–12 (explicitly directed, in private, to the disciples).87 Indeed, in some Pauline sources, the union of man and woman, which approaches the state of the original androgynous Adam, “corresponds to the union between Christ and his church”.88 If this is the ultimate application of the metaphor, one may understand the argument for celibacy as between individual members of that church. “What therefore God has joined together, let not man put asunder” (not quoted from the Hebrew Bible) is compatible with both esoteric or non-esoteric readings. In the context of “male and female he created them”, it refers to the original androgynous creation (Daube 1956:73), to be symbolically recapitulated (through the indissolubility—perhaps eternity?—of marriage) in the eschatological age. It may well, however,

83 Derrett 1970:384, taking support also from rabbinic ideas of marriage by biyah (1970:385) but not noting the requirement there of the requisite intention. 84 On the sectarian character of the Matthaean community, however, see Sim 1998:115–150. 85 Though there is no such tradition in the Matthaean text. Daube 1956:78 regards Mark as a “palpable assimilation to Matthew”, and discusses at 1956:79f. the textual traditions of Paul’s use of the verse, some of which also omit the clause. 86 See n. 5, supra. 87 Daube 1956:78, 83f. 88 See Daube 1956:79f., on 1 Cor. 6:15–17 (quoted infra, 186) and the form of the quotation in the textual tradition of Eph. 5:31. Instone-Brewer 2002:210f. denies that Rom. 7:2 is intended as a substantive teaching about divorce and remarriage; marriage is used here simply as a metaphor for the dissolution of the law through Christ’s death. At 2001, he comments: “Paul . . . pictures the Jewish believer as married to the Law, and wishing to be married to Christ instead. Barring a divorce (which presumably the Law will not provoke or initiate) the only way to end the contract is through death. Therefore Christ’s death, which the believer shares in, becomes the means by which a Jewish believer can end the old covenant of law and start the new covenant of faith.”

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have originated as an independent saying,89 “What God has joined together” referring to joining through the act/sacrament of marriage itself. Fitzmyer (1998:85f.) sees a parallel in some MSS of LXX Tobit 6:18: “she was destined for you from eternity”. The esoteric teaching based on androgynous creation implies an ideal of celibacy for the elect, and indissolubility for all others. Chastity, to the exclusion even of a one-off, non-marital relationship, is preached by Paul, using the “one esh” proof text: 1 Cor. 6 (15) Do you not know that your bodies are members of Christ? Shall I therefore take the members of Christ and make them members of a prostitute? Never! (16) Do you not know that he who joins himself to a prostitute becomes one body with her? For, as it is written, “The two shall become one esh.” (17) But he who is united to the Lord becomes one spirit with him. (18) Shun immorality. Every other sin which a man commits is outside the body; but the immoral man sins against his own body. (19) Do you not know that your body is a temple of the Holy Spirit within you, which you have from God? You are not your own; (20) you were bought with a price. So glorify God in your body.

The implication of the theological justication, however, would appear to extend to advocacy of complete celibacy. Marriage is a concession, as is recognised by the disciples when they question Jesus about it in the nal exchange of the Matthaean controversy pericope: Matt. 19 (10) The disciples said to him, “If such is the case of a man with his wife, it is not expedient to marry.” (11) But he said to them, “Not all men can receive this saying, but only those to whom it is given. (12) For there are eunuchs who have been so from birth, and there are eunuchs who have been made eunuchs by men, and there are eunuchs who have made themselves eunuchs for the sake of the kingdom of heaven. He who is able to receive this, let him receive it.” (13) Then children were brought to him that he might lay his hands on them and pray. The disciples rebuked the people; (14) but Jesus said, “Let the children come to me, and do not hinder them; for to such belongs the kingdom of heaven.” (15) And he laid his hands on them and went away.

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Hultgren 1979:119, partly on the grounds that it appears superuous after the “one esh” doctrine, partly because “one esh” is a different image of marriage than the “yoking” (the latter “less binding”).

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The distinction between the elect and others is clearly made in vv. 11– 12.90 The blessing of the children implies the reason for the concession: procreation remains necessary, in case the eschaton is (however slightly) deferred. The eschatological assumptions are stressed by Isaksson,91 who argues that in Matt. 19, Jesus was dependent, in particular, on Ezek. 44:2292 rather than Lev. 21:7.93 This is reinforced by the special authority attributed to Jesus in making this proclamation: the #$ !% &' evokes Jesus’ speech in the antitheses of the Sermon on the Mount.94 Where the concession is granted, the relationship must be exclusive. This view may well itself have a related theological basis, and should not be regarded merely as a “next best thing” to complete celibacy. The very notion that the original androgynous creation is replicated for Christians in the eschatological age by a union (albeit spiritual) with Christ, such that “your body is a temple of the Holy Spirit within you, which you have from God” (1 Cor. 6:19), evokes the prophetic marriage metaphor of the Hebrew Bible (not, we may note, invoked by the Qumran sectarians).95 Such a union has a conceptual permanence in that one of its parties, God, is permanent.96

90 Daube 1956:84f. takes the view that though Matthew himself “is presumably no longer inuenced by the notion of an androgynous being”, it is likely to have played a part in the source from which he took this dialogue with the disciples. 91 1965:147, 199. Fitzmyer 1998:101 is attracted by Isaksson’s suggestion that Jesus’ ban on divorce is an extension of the priestly ban in Lev. 21:7, cf. Ezek. 44:22, applied to the Christian community as consecrated to the service of God (citing also 2 Cor. 6:14–17, 1 Cor. 3:16–17, Eph. 2:18–22, Rev. 1:6). We may note, however, that this is a major extension, in that there is nothing in the Hebrew Bible preventing the priest himself from divorcing, only from marrying a divorced woman. 92 “They shall not marry a widow, or a divorced woman, but only a virgin of the stock of the house of Israel, or a widow who is the widow of a priest.” 93 “They shall not marry a harlot (zonah) or a woman who has been deled; neither shall they marry a woman divorced from her husband; for the priest is holy to his God.” See also Isaksson 1965:41f. on early rabbinic interpretation of Lev. 21:7 as including a woman exploited for fornication (shenivxalah be{ilat zenut ), the common factor with the other cases (female proselyte, manumitted female) being that they are no longer virgins. But since a priest might marry a widow, it seems that the earlier “profaned relationship was considered to have been abolished when the man with whom she had these sexual contacts had died” (1965:43). We may note that CD appears to go further insofar as hyyjb is taken to preclude marriage with a widow. 94 Cf. Banks 1975:150–53; Wenham 1984:98. 95 Isaksson 1965:36 remarks: “It is, of course, difcult to decide whether the prophets’ use of marriage as an image of the relationship between Yahweh and Israel may gradually have inuenced the Jewish view of marriage and divorce.” This may well reect the priority of Pentateuchal sources as bases for halakhic argumentation. 96 Cf. Jackson 2000:169 on the relationship between God’s permanent entitlement in Lev. 3:16–17 and the permanence of law.

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But does the “one esh” doctrine also entail indissolubility (thus, a ban on divorce even when not followed by remarriage)? It depends on how tightly it is tied to, or equated with, the theory of androgynous creation. Conceptually, no doubt, divorce not followed by remarriage cannot be excluded from the doctrine. But when, as apparently in Mal. 2, this is overlaid with the prophetic marriage metaphor, whose breach is manifest in adultery (= idolatry) and not mere divorce (= renunciation of God), the question may appear more open. RSV renders the passage: (14) You ask, “Why does he not?” Because the Lord was witness to the covenant between you and the wife of your youth, to whom you have been faithless (htdgb), though she is your companion and your wife by covenant. (15) Has not the one God made and sustained for us the spirit of life? And what does he desire? Godly offspring. So take heed to yourselves, and let none be faithless to the wife of his youth. (16) “For I hate divorce, says the Lord the God of Israel, and covering one’s garment with violence, says the Lord of hosts. So take heed to yourselves and do not be faithless (wdgbt).”

Verse 15 is notoriously problematic. The 1992 translation of the Israel Bible Research Society in fact renders it: And did not God make of you one esh? So that one should have a spiritual kin? And what does that one esh seek? A godly seed; Therefore take heed to your spirit, that you do not be faithless to the wife of your youth.

The terminology does not correspond to that of Gen. 2:24 in either the MT or the LXX. Nevertheless, Hugenberger maintains that there is here an allusion to Gen. 2:24.97 Some have argued that jlç anç in v. 16 is better translated “If one hates and divorces”, with MT anç being given its common association with either the motivation (as here) or effecting of divorce.98 Yet even without this, the context and

97 Hugenberger 1994 entitles his ch. 5: “Malachi 2:15: Malachi’s appeal to Adam and Eve for his understanding of marriage as a ‘covenant [tyrb]’ ”. See esp. 1994:133 and Instone-Brewer 2002:54–58. 98 Hugenberger 1994:69, slightly modifying Westbrook 1986:403; Instone-Brewer 2002:56f., noting at n. 56 textual variants which further support this approach. The 1992 Israel Bible Research Society translation renders: “For to send her away is hateful”. Note the rabbinic interpretations discussed in Gitt. 90b: “For a hateful one put away: R. Judah said: [This means that] if you hate her you should put her away. R. Johanan says: It means, He that sends his wife away is hated” (Soncino translation). The Gemara then seeks to afrm both, relating them to the rst and second marriages of Deut. 24:1–3.

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terminology of the Malachi passage indicates that the stress is upon the unfaithfulness99 (= idolatry) that provokes the divorce (= breach of covenant), rather than the divorce itself. As in Deut. 24:1–4, divorce is simply the context for an illicit (successive) sexual relationship which is condemned on religious grounds. 5. The Institutionalisation of Marriage and Divorce Marriage and divorce do not enter human life as “legal” institutions. They commence as social practices100 which are far more fact-based and exible than we normally expect of legal rules, as well as being subject only to social rather than institutional sanctions. This, I have argued, is very much the picture presented in the Hebrew Bible, where only the beginnings of the transition from social to legal institutions can be traced—a beginning generated by a combination of the prophetic metaphor of God’s relationship with Israel as a marriage with the issues of social identity raised by foreign marriages in the time of Ezra.101 The relationship between social and ideological (here, religious) factors in the transition from social to legal institution is not to be viewed in unilinear terms: it may well differ from society to society. Comparison with the development at Rome is of some interest, given the Roman (or Greco-Roman) context of many of the New Testament sources. What we nd even in the “classical” (and juristically well-developed) Roman law is a social institution which has been barely juridied at all: the basic test of the relationship is the existence (or disappearance) of affectio maritalis, and this can be demonstrated in almost any way sanctioned by social practice.102 This, however, applied only to marriage sine

99 With the use of dgb in vv. 14 and 16, cf. Exod. 21:8 hb wdgbb, applied to another case of a successive sexual relationship which is condemned on moral grounds, namely the resale (for sexual purposes) of a Hebrew female debt-slave herself originally sold by her father for sexual purposes, but then (after such a relationship has commenced) sold on: see further Jackson 2006:90–93. 100 See also the interesting (sometimes provocative) account of this issue in Derrett 1970:365f. 101 Jackson 2007, noting that the origin of our use of the term “institution” derives from Roman law, where the introductory treatises (such as that of Gaius) were termed books of Institutiones, and where such institutions were often set out in what the modern philosophical tradition terms ‘institutive’ (or ‘constitutive’), regulatory and ‘terminative’ rules—sets of rules which, respectively, tell us how the institution is created, operates and comes to an end. 102 Yaron 1964:63 comments on the “surprising lack of sources outside of Justinian’s compilation” on the ways in which classical Roman marriage terminated. Cf., for

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manu.103 There was also an ancient, “tighter” form of marriage known to the Romans, cum manu, but this was restricted to the aristocracy.104 It became a marker of social distinction. Noblesse oblige. As for Jewish law, Satlow has recently argued that in antiquity there was no single concept of “Jewish marriage”,105 though his focus is more upon social and cultural variables, rather than the impact of sectarian religious ideologies. There is certainly evidence that many of the terms of the Jewish marriage contract developed from notarial practice, often sharing much in common with the non-Jewish environment.106 But how enforceable Jewish marital arrangements were, in Jewish fora, is questionable. Derrett has judiciously remarked (1970:364): Disallowing conduct is not the same thing as penalising it. The conduct disallowed is disapproved, it is not void in law. The society, in its own way, may deal with offenders; there is no assumption that the courts will take action; but this assumption may well be true in the rare cases where the society and the political unit are the same (as, for example, in a sectarian colony).

The distinction drawn here between social disapproval and more institutionalised enforcement (in “rare cases”, such as sectarianism) is not, however, a function merely of variation in political structure. The very fact that sects retire from the mainstream and establish their own mini-political structures,107 whereby to enforce more directly their chosen values, is a reection of their desire for separation and a distinct identity, expressive of their religious ideology. It is not difcult, then, to see sectarianism (and reactions to it) as a factor contributing to the transition from social to legal institutions.

classical Athens, Cohn-Haft 1995:3 n. 8, stressing the private nature of the actions required to constitute both marriage and divorce (at least where initiated by the man). See further Jackson 2005:362f. on the issue of whether notication to the divorcee was necessary, and more generally at 366f. 103 manus (= hand) is here used technically as a metaphor for a form of power; cf. the usage of the Hebrew yad. Cf. Cohen 1966:I.240f. n. 336. 104 Cf. Daube 1956:363, Corbett 1930:67–106; Treggiari 1991:16–34. 105 Satlow 2001:xiii, and see on his general theme Jackson 2004. On the denitional issues involved, see Jackson 2004a:174–77. 106 See Jackson 2003, 2004:216–24. 107 Thus, for example, Hultgren 1979:119 interprets the Markan controversy pericope (including the passages on children and wealth at vv.13–27) as “a series of duties for Christians reminiscent of the household rules in various epistles (e.g. Col. 3:18–4:1, Eph. 5:22–6:9, 1 Pet. 2:18–3:12)”.

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This theme is pursued further below. But rst, a note about the relationship between terminology (much discussed in respect of the New Testament texts) and such questions of institutionalisation. The fact-based social reality of divorce by the husband is that he expels his wife from the matrimonial home. In the Hebrew Bible, the verbs used are shila˜ and garash. The latter, signicantly, is used also of disinheritance of children: they, too, are simply expelled.108 Similarly, Daube (1956:364) notes that verbs like expellere and ()

 (which the LXX regularly uses to render garash) are used in Roman and papyrological sources of the husband rather than the wife, reecting the fact that ordinarily the husband would be the owner of the conjugal residence. Conversely, the social reality of divorce by the wife is that she simply leaves (where still possible, to return to her parental home), expressed in Greco-Roman sources by verbs like abire and *   . The nearest we get to this phenomenon in the Hebrew Bible is the departure of the husband from a matrilocal marriage, as in the case of Samson ( Judg. 14:19–20, 15:1–2): such desertion, it has been argued, entitled the wife (or her father) to regard the marriage as at an end.109 Whether such acts of physical distancing, in the Hebrew Bible, were also always accompanied by the formality of either an oral declaration110 or a written document111 may be doubted. Sufce to say that such formalities became customary and eventually came to be viewed as mandatory. In the rabbinic tradition, at least, the fact that the sefer keritut is described in Deut. 24:1,3 as delivered by husband to wife was regarded as authority for the view that divorce (now conceived as a legal act) is always

108

See, e.g., Judg. 11:2, 7, discussed supra, 126. Zakovitch 1981:36–38, noting also the marriage of David and Michal (1 Sam. 25:44), on which cf. Tosato 1982:196f., and see further Jackson 2007 at n. 39. 110 Reected in the formula contraria of Hos. 2:4: “Plead with your mother, plead; for she is not my wife, nor am I her husband; let her therefore put away her harlotry away from of her sight, and her adulteries from between her breast”, where we may take “for she is not my wife, nor am I her husband” to be an implied threat to utter the formula in the light of the mother’s behaviour. That it is a formula contraria is best seen from the Elephantine marriage contracts. Brooklyn 7, for example, commences by recounting that the bridegroom came to the house of the brother of the bride and declared: “I have come to your [hous]e and asked you for your sister the woman Yehoyishma’ (as she is called) in marriage, and you have given her to me. She is my wife and I am [ her] husband from this day to eternity. I have paid to you as the bride price of your sister . . .” Moreover, the same contract indicates that either party may divorce the other by a declaration in the assembly, that of the husband being “I divorce my wife Yehoyishma’; she shall not be a wife to me”, that of the wife being “I divorce you, I will not be wife to you” (Ginsberg’s translation, ANET). 109

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performed by the husband, not the wife. Hence, active verbs referring to the performance of such legal acts are applied to the husband, not the wife, and verbs referring to the departure of the wife from the matrimonial home are taken to refer to “separation”,112 something less than “divorce”. When, as in Mark, a “divorce” verb113 is applied to such an act of the wife, it marks the institutionalisation of a hitherto social act,114 and not necessarily either a radical change in practice or a difference in cultural context. Such institutionalisation, however, is culturally signicant, insofar as it is taken as a marker of the separate identity of the group which uses it in this way.115 An important aspect of institutionalisation is the “modality” applied to the form of behaviour in question. Whereas in Western thought we think of legal institutions in terms of “deontic” modalities (behaviour is either prohibited, permitted or required), social institutions display a wider range of such modalities, reecting additional moral, religious and aesthetic values. Thus, behaviour which is neither prohibited nor prescribed but merely permitted may at the same time be either encouraged or discouraged, and this (in religious contexts) because it is regarded as meritorious on the one hand, sinful on the other.116 Hostility to divorce may be understood in this context. In the Hebrew Bible, divorce is certainly permitted, but we already encounter opposition to it (and certainly to its arbitrary (ab)use) in prophetic sources—not unconnected with the marriage metaphor for Israel’s relationship to God.117 In the context of Second Commonwealth sectarianism, the loci of authority for customary practice on the one hand, religious

111

Deut. 24:1, 3, Isa. 50:1, Jer. 3:8. Thus, Daube 1956:362f. comments on  : ‘ “To separate” may denote “to go away”, i.e. actual departure from the common domicile, or merely avoidance of intercourse. Strictly, only the husband can dissolve the marriage’. See also Fitzmyer 1998:81, 89f.; Instone-Brewer 2002:197 n. 11, 198. 113 On * "  in Mark 10:12, see Daube 1956:366, and as used (in the middle form: * + ) by Josephus to describe Salome’s divorce from Costobarus, 1956:371f., commenting: “From the point of view of the law, her action was . . . a walking out.” On these sources, see further infra, 211, 212–13, 216. 114 Daube 1956:369 notes that the Septuagint renders çrg by (,

 and jlç by -.

 or *.

 . Yet the Synoptics as well as Paul preferred * "  . 115 See further infra, 217, on 1 Cor. 7:10–11. 116 See further Jackson 2002:43f. 117 See esp. Mal. 2:14–16, discussed supra, 188 end of s.4; Winter 1956:73; Isaksson 1965:27–34; Instone-Brewer 2002:54–58. For a similar argument in relation to monogamy, see infra, s.9. 112

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observance on the other, come to be united. As a result, religious discouragement acquires a stronger institutional form: divorce comes to be “banned”.118 But we still need to enquire, for each text, what modality, precisely, this entails. In particular, is the “banned” divorce valid but sinful (Epstein 1927:194), or invalid in itself ? If the latter, is that the reason why a subsequent relationship is regarded as adulterous, or does that designation derive from the “one esh” doctrine (or are these alternative analyses appropriate to different audiences?). If the latter, is divorce not followed by remarriage equally objectionable? The context of Second Commonwealth sectarianism also requires us to address the social and theological context of the ban: is the sect looking only inwards, or is it positioning itself (indeed, dening its identity) is relation to others?119 And how does it relate its present practices to its eschatological expectations?120 It is in the light of such considerations that we must evaluate Instone-Brewer’s radical new thesis, that Jesus’ teaching, most explicitly represented by Matthew but equally endorsed (in summary form) by Mark, Luke and Paul, was not that of principled opposition to divorce, but rather rejection of the Hillelite criteria (which, he accepts, would mean that “virtually every remarriage was a case of adultery”: 2002:132). This could be understood as a way of integrating the biblical sources: divorce is permitted, only its abuse is discouraged—even if that discouragement now assumes, within the early Church, a stronger institutional form. But if so, why all the fuss? Why should Rabbis following the Hillelite position take any more oppositional a stance to Jesus than they did to the Shammaites? Both were simply advocating

118 There are also lesser forms of discouragement, through nancial incentives. Instone-Brewer 2002:81–84 comments, in this context, on the security clause for the ketubah payment attributed to Shimon b. Sheta˜. On this, see further Jackson 2003. 119 Thus, the question posed to Jesus in the Markan controversy pericope, “Is it lawful for a man to divorce his wife?” (10:2), has been regarded by some as incomprehensible in a Jewish setting (e.g. Hultgren 1979:122: “not a question a Jew would normally ask”). Fitzmyer 1998:98 responds, rightly in my view, that Jesus is being asked whether he sides with the Essenes or the Pharisees. Cf. Mueller 1979–81:255 and earlier Banks 1975:146, 159, arguing that a more “local” issue would hardly be one which “tests” Jesus, and that the Pharisees are expecting him to reply in a radical way. Contra, Vawter 1977:533; Hultgren 1979:145 n. 108; Instone-Brewer 2002:135. 120 Amongst other things (though often difcult to determine), are its present practices an anticipation of life in the new Kingdom, or a condition of entry to it? On this issue, see Jackson 2007c (review of Davis 2005).

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a stricter view of the divorce criteria.121 Or are we to suppose that they were concerned that Jesus was urging his followers to take a less relaxed approach than the Shammaites, i.e. not countenancing “intermarriage” with the Hillelites, because of (what they regarded as) the latter’s loose divorce practices?122 It may, however, be wrong to place too much reliance on the mishnaic statement of the difference between the Schools on this matter. Apart from issues of the dating of the tradition,123 it is odd that a Mishnah on such a fundamental issue—the basic criteria for divorce, in the light of the biblical text—appears at the very end of Mishnah Gittin, almost like an Appendix. Its literary function in that context deserves more attention than it has received.124 Is the statement of the Hillelite position, and especially that of R. Akiva entitling the husband to divorce his wife simply because he has “found another prettier than she”,125

121 Cf. Sanders 1990:5, stressing that this was not (from the Hillelite viewpoint) contrary to the law. 122 See Instone-Brewer 2002:130f., 182f., on T. Yeb. 1:10 (which does not, incidentally, include amongst the matters in dispute between the Schools the precise issue in M. Gitt. 9:10), arguing that Jesus would not accept this pluralistic approach, of accepting intermarriage between the groups despite their different practices in relation to divorce. 123 Even if we accept, with Neusner (1971:III.181, 227), that the statement of R. Akiba in the Mishnah provides “verication”. However, he argues that this kind of verication, where the later source either participates in deciding a Houses dispute or comments on it directly, not only provides a terminus post quem (at II:38, he also regards it as providing a terminus ante quem) but also suggests that the dispute “(in its present state) . . . derives from a circle of {Aqiban disciples”. 124 The tradition appears (in elaborated form) also in Sifre Deuteronomy 269 (see Neusner 1971:II.37–39), a halakhic midrash in the form of a running commentary, where it is attached to Deut. 24:1. In literary terms, this is a far more natural positioning, and we may speculate that the addition was made to the Mishnah in the light of Sifre. This may be supported by a distinction between Shammaite exegesis and Shammaite law drawn by Louis Finkelstein in a personal letter to Neusner (quoted by the latter at 1971:II,29), arguing that ‘Aqiba was willing to let scripture be taught in accordance with the views of the Shammaites, provided that the Mishnah and Tosefta, providing normative guidance, followed the view of the House of Hillel. The addition may, then, have been made only when the normative priority of the School of Hillel had become a rmly established exegetical principle of the Mishnah-Tosefta. The tradition also appears to have circulated independently, since it appears also as a baraita in Gitt. 90a. Indeed, its very citation there might be taken to suggest that it had not yet been attached to the Mishnaic text. On the substantive issues which arise for the dating and interpretation of the Hillelite position, see further infra 207–10. 125 Neusner’s translation (1971:II.38), describing this as “extending the ruling to a more extreme case than is given to the Hillelites”. The irony consists in part in the fact that the practical application of the criteria entitling a wife to divorce were tightened in M. Ned. 11:12 precisely for fear that the wife may otherwise use them as a pretext, the reality being that she has “cast her eyes on another”.

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ironical? And if so, what modality is to be attached to it? Surely this would be a case of which even the Hillelites would disapprove, even if they permitted it? (Indeed, the talmudic sugya which comments on this Mishnah concludes with the famous saying, attributed to R. Eleazar: “If a man divorces his rst wife, even the altar sheds tears”.)126 Or perhaps the Hillelites simply recorded their acquiescence (not being able to do anything about it?) in what they observed as contemporary practice? At the same time, the literary positioning of the dispute may perhaps reect recognition of the fact that the procedures and criteria for divorce are stated in Deut. 24 only as incidental features of the situation of palingamy: the main concern of the passage is to ban remarriage (here, with the rst husband), on the grounds that the woman is “deled” (hutmaxah), so that resumption of relations with her would be an “abomination” (to{evah). In short, the overall concern of the biblical passage is far more with remarriage (and the theology implicit in it) than with divorce itself. The positioning of the Houses dispute in the Mishnah may reect a tacit recognition of this: the likely source of the Mishnah, the halakhic midrash Sifre on Deuteronomy, both provides a more elaborate version of the exegetical question127 (the wording of Deut. 24) and is particularly interested in issues of remarriage: it formulates its conclusions in terms of whether the woman “is permitted to remarry (açnhl trtwm)”,128 and goes on to justify the contingency that she may not be permitted to remarry (in a case of ervah) with a kal va˜omer : if, as a result of the adultery, she is prohibited to her former husband (to whom formerly she was permitted), she must a fortiori be prohibited also to marry a man (the man, anyone?) to whom formerly she was already prohibited.129

126

Gitt. 60b, citing Mal. 2:13–14. Sifre Deuteronomy 269. See further infra, 207f. 128 Not so on the hypothesis that the text had contained only hwr[ and not rbd, where the conclusion is stated in terms simply of whether the wife axt or not. That may possibly reect the fact that in a case of hwr[, the assumption is that any remarriage would be with the man with whom she had committed adultery, and this is prohibited. 129 Neusner (1971:II.37) takes it to be “any other man”; Instone-Brewer 2002:163 translates: “[why should she] not be forbidden from him who had been forbidden to her”, i.e. the lover with whom she committed adultery. The latter is more likely to be correct. Interestingly, however, Neusner’s version brings it closer to the issue in the Gospels. 127

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Though we may often regard the more extended versions of a tradition as elaborations, the Sifre version suits the exegetical genre of the work in which it appears, and this difference from the primary character of the Mishnah (an exposition of rules rather than arguments) may explain the appearance of the latter as an Appendix to Mishnah Gittin. 6. Divorce and Remarriage in the New Testament Let us review, in the light of the foregoing, the principal New Testament passages (deferring, for the moment, consideration of Matthew’s porneia exception). Luke 16:18 Luke 16:18130 refers throughout to a man who remarries after divorce and categorises the resulting union as adultery. There is no reference to biblical proof texts. The teaching is compatible with the view that the divorce is regarded invalid131 (and not merely sinful), so that a still married partner enters into another, thus adulterous, partnership. The one departure, here, from traditional Jewish understandings is the extension of adultery to include the relationship of a still married man with an unmarried (and possibly virgin) woman.132 Mark 10 In Mark, though the opening challenge from the Pharisees is in terms of the “lawfulness”133 of divorce as such, the pericope concludes with Jesus’ reply to the disciples on the adulterous status of remarriage by a

130 See Fitzmyer 1998:82f., who regards it, with minor modication, as probably “the most primitive form of the sayings in the New Testament about divorce”; see also n. 6, supra. 131 Fitzmyer 1998:82 describes it as an “absolute prohibition of divorce”; Vawter 1977:540, on the other hand, regards Jesus’ command not as divine law but as “addressed to the Christian conscience”. 132 Cf. Vawter 1977:530f., regarding this as a more fundamental change in the Q logion than Matthew’s porneia exception. Biblical sources are consistent in restricting adultery to interference with another man’s marriage. For early rabbinics, see M. Sanh. 11:6. 133 /-  . Jesus’ immediate reply is in terms of what Moses “commanded” (  0 ).

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divorcing husband or wife.134 The latter, on its own, might be analysed as suggested above for Luke 16:18. However, in Mark it occurs following an exchange with the Pharisees in which biblical proof texts take centre stage. Jesus rst counter challenges the Pharisees to indicate what Moses “commanded” (anticipating, of course, their reply). They reply by citing Deut. 24 as proof that “Moses allowed (# 1 ) a man to write a certicate of divorce”, thus divorcing ( * 2 ).135 Jesus then proceeds to cast doubt on the authority of this proof text, implying, at the very least, that what Moses wrote “for you” is of lesser authority than what God himself ordained (for everyone) at the beginning of creation.136 Whether the substantive explanation, that the mosaic permission was a concession to “your” (the Pharisees? the Jews? the husband? the wife?) hardness of heart, is not clear.137 In any event, we are far from bound to assume that what Jesus says to the Pharisees represents his full view of the matter. Might it be that he realises that divorce is only incidental in Deut. 24, whose main concern is a particular form of illicit relationship (palingamy). He then provides what he regards as the true basis not only for the ban on palingamy but also the regulation of sexual relations more generally. This consists in his combining the notion of the androgynous Adam of Gen. 1 with the “one esh” doctrine of Gen. 2. He decodes this for the Pharisees not in terms of esoteric teaching but rather with the non-biblical “What therefore God has joined together, let not man put asunder”.138 That makes it appear that his target is divorce as such (in line with the “trap” originally laid by the Pharisees), thus aligning himself and his followers with those (as

134

On the issue of divorce by a wife, see s.8, infra. The emphasis here appears to be on the procedure for divorce, but procedure gures prominently in the description of the situation in Deut. 24:1–3. 136 Jesus has trapped the Pharisees by an ambiguity: the Pharisees will have understood “What did Moses command you?” as “What did God command you in the Mosaic law?”. Jesus’ reply shows that he regards (at least this, Deuteronomic) law as non-divine: his original question was thus what had Moses (as opposed to God) commanded. 137 Different views have been taken. Derrett 1970:376 approves Dupont 1959:18f., that it refers to the inability of the husband to abstain from relations with an (adulterous?) wife. Instone-Brewer, discussed further below, interprets it as relating to the wife, who is a persistent adulteress and unwilling to give up her relationship and be reconciled to the husband (2002:144–46, 180–82). Others take the view that hardness of heart does not refer to the family dynamics at all: Banks 1975:149f. sees here an indirect reference to the Pharisees’ refusal to accept the ministry of Jesus and thus to the christological issue. Lövestam 1981:48 takes it to mean that the people had hardened their hearts against God, and were not open to his absolute will. 138 Some have argued that this is not original. See, e.g., Hultgren 1979:120f. 135

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reected in the Qumran texts) for whom divorce as such was, at the very least, problematic. Whether, in itself, it teaches that divorce is invalid or merely sinful,139 is not made clear. But the disciples, it seems, were not satised (perhaps by this very question), and asked Jesus about it again, in private. To them, his reply is comparable (if not identical) to that in Luke: the main concern remains illicit relationships after divorce, not divorce itself. But the context, after the exchange with the Pharisees, may well suggest that Jesus’ justication of the conclusion is now in terms of his (esoteric) understanding of the biblical theology. Matt. 19 In Matthew, the structure of the dialogue is changed. The Genesis proof texts are proffered immediately,140 in response to the Pharisees’ question.141 The Pharisees understand this as a complete prohibition of divorce, and respond that divorce was in fact “commanded” (  0 , not merely allowed) by Moses in Deut. 24. Jesus replies that what Moses did was in fact only to “allow” (#  )142 divorce,143 and this as a concession to “your hardness of heart”. The authority of Moses is here contrasted with that of Jesus himself: “And I say to you ( #$ !% &' ).”144 He uses that authority to stipulate that remarriage by a divorcing husband (even with a never married woman) is to be viewed as adultery. Once again, the agenda is changed from an apparent debate over divorce as such to one concerning remarriage after divorce.145 This

139 Instone-Brewer 2002:141 argues from the imperative form of . in Mark 10:9 and Matt. 19:6 that it is possible for couples to separate, but they are being asked or commanded not to do so, on the grounds that breaking their marriage vows is a sin. 140 And here separated by  3 (v. 5). 141 On the relationship of this to the porneia exception, see s.7, infra 206. 142 On the distinction between commanded and allowed, and the difference here with the Markan version, see 203, 208f., infra. 143 Wenham 1984:95, 101ff. takes the Matthaean position to be permission only of separation a mensa e thoro (and then only in cases of porneia), in line with a common patristic view. This is approved by Bockmuehl 2000:21; aliter, Banks 1975:154, on grounds of the use of * +  in Matt. 19:9. 144 See 187, supra. 145 Aliter, Wenham 1984:102, discussing Dupont 1959 for the view that the implication of v. 9, in context, is that divorce is in itself adultery unless it is for unchastity ( porneia), and that even if it is for unchastity, it is adultery when followed by remarriage. Wenham, though sympathetic to this, notes at 1984:104 that the rst proposition is unique to Matthew (cf. Matt. 5:32a). But how can divorce in itself be adultery? Derrett notes at 1970:381 the concern that a man might have relations with his wife after she has committed unchastity (naxaf ). But is that a concern even after he has divorced her?

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may well have been intended to be understood by the Pharisees in nonesoteric terms:146 since divorce does not validly terminate the previous marriage, a subsequent relationship is adulterous. When, however, the disciples continue the discussion with Jesus (not here stated to be in private, but that may reasonably be inferred), the issue becomes much more radical and esoteric: the question becomes whether marriage itself is a concession to human weakness (or to the indeterminacy of the arrival of the eschaton), the real implication of the androgyny/one esh teaching being the ideal state of celibacy.147 Matt. 5 Matthew’s antithesis in the Sermon in the Mount (5:32: “But I say to you that every one who divorces his wife, except on the ground of unchastity, makes her an adulteress (  4 '  );148 and whoever marries a divorced woman commits adultery”) is normally taken as contemplating two cases of remarriage after divorce: (1) that of the wife after she has been divorced by her husband—but here, as contrasted with Mark, blamed on the (non-remarrying) husband who had facilitated this by the divorce;149 (2) that of the divorcing husband who himself remarries. Matthew shares the second case with Luke and Mark, as well as with his own controversy pericope. Here, it is not linked to any creation theology, but implies simply the invalidity of divorce150 (subject to the porneia exception) with the consequence (given Jesus’ extended denition of naxaf—the concern also of the preceding antithesis)151 that a subsequent marriage by the divorcing husband is adulterous.

146

See Daube, at 185, supra. See supra, 185. 148 Daube 1956:371 points to the terminology of the get, in which the husband renders the wife mutteret to others, in explanation of the logic here. 149 Cf. Wenham 1984:103. 150 Fitzmyer 1998:101 is strongly critical of the view that the Sermon on the Mount in general and Matt. 5:31–32 in particular represents an ideal rather than a legal norm; rather Jesus’ words here “appeal beyond mosaic legislation and any ideal to the divine institution of marriage itself ”. Here Jesus appeals not to a creationist theology, nor does he categorise divorce as “merely” Mosaic (rather than divine); rather he afrms his own superior authority as an interpreter of the “divine institution of marriage” (which implies also the circumstances in which it may be terminated), as revealed in the Decalogue. 151 Cf. Wenham 1984:103. 147

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The second example is thus unproblematic, less so the rst. There is no direct parallel in the synoptics to (1).152 Moreover, it does not actually say that the divorced wife remarries. Are we (a) to take it to imply that the wife has remarried (which would certainly render her an adulteress, in Jewish terms, if her divorce were regarded as invalid); (b) to take Matthew to mean that he makes her a potential adulteress, in the event that she remarries; (c) to take the language literally, without importing any further assumption, and thus to mean that the (unjustiably) divorced wife is thereby rendered an adulteress, even in the event that she does not remarry? This last possibility would appear counter-intuitive, but is endorsed by Wenham (1984:103f.), who concludes that v. 32a “says nothing about the propriety of remarrying after divorce” and “is thus adding a new idea: that divorce by itself is also adultery, unless it be for unchastity.” He summarises what he takes to be the overall effect of Matt. 5:32 as: 1. Divorce and remarriage 2. Divorce by itself 3. Divorce by itself

is adultery (5.32b) is adultery by the husband (see the context) except in the case of unchastity (5.32a) leads to adultery by the wife when she remarries (5.32a)153

Wenham accepts that the “second proposition is unique to Matthew”. But it still requires to be explained. An outright prohibition of divorce, irrespective of subsequent remarriage, is understandable; designating such a divorce as “adultery” is far more difcult. Of course, the immediate context in the Sermon may be thought to assist. After all, Jesus has just proclaimed an understanding of the Decalogue commandment against adultery as extending to “every one who looks at a woman lustfully” (5:28). But even that fails to explain why the husband who unjustiably divorces his wife (and has nothing further to do with her) thereby commits adultery. Is making her a potential adulteress, in the event that she remarries (but before she does so), really enough?154 It is difcult to see how either the “one esh” doctrine or the Deuteronomic ban on palingamy can help here. 152

Cf. Wenham 1984:104. This appears to endorse (a) in addition to (c), although there is a hint of (b) where Wenham writes: “By divorcing her he forces her to seek another husband and thereby commit adultery” (1984:103). 154 The preceding antithesis, on the interpretation of adultery in the Decalogue, 153

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The conclusion must surely be that v. 32a reects an extraneous tradition, which does seek absolutely to ban divorce irrespective of any subsequent marriage, but seeks to do so in the language of the synoptics. Paul It is not difcult to identify that extraneous tradition. Speaking in the name of Jesus, Paul ordains: “To the married I give charge ( $$#

), not I but the Lord, that the wife should not separate from her husband (but if she does, let her remain single or else be reconciled to her husband)—and that the husband should not divorce his wife” (I Cor. 7:10–11). No hint of remarriage here.155 The language in relation to the wife is that of separation rather than divorce, but that simply reects the fact that separation was the factual manner of divorce by the wife, especially in the Greco-Roman world (which Paul is here addressing). The fact that post-separation reconciliation is urged is not incompatible with this. It is not the fact of separation which automatically and immediately effects divorce; rather, separation may provide evidence of the cessation of affectio maritalis. The longer it lasts, the stronger that evidence; should the wife opt for reconciliation, any presumption from separation is rebutted. More signicant, perhaps, is the internal structure of Paul’s qualication:156 if the wife does separate, “let her remain single or else be reconciled to her husband”. Might we not have expected: “let her be reconciled to her husband or else remain single”? It almost sounds as if, for Paul, the single state is preferable to reconciliation and resumption

may be viewed in the context of contemporary thinking on liability for mere intention: see Jackson 1975:213f. That concept, while not accepted by the halakhah, played a role in the development of liability for attempt and incitement. The latter may be particularly relevant here, given that there is a Schools debate which again involves the interpretation of the term davar in a biblical legal text (baraita in Kidd. 42b, on Exod. 22:8): see further Jackson 1975:228–32. 155 Daube 1956:75, however, argues from 1 Cor. 7:15 that Paul “probably also looks upon a husband’s re-marriage during his wife’s lifetime as in principle adulterous. He writes that only if an unbelieving wife or husband dissolves the union, the believing ‘brother or sister is not under bondage’. Surely the implication is that, except for this case, re-marriage would be illicit—and no less so for a brother than for a sister.” 156 Questions have been raised as to whether the whole clause is original. Fitzmyer (1998:81) argues that it probably is.

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of the marriage. But this is indeed compatible with Paul’s teaching in the previous chapter, where spiritual union with the Lord is preferable to any manifestation of physical union, despite the endorsement of the latter in the “one esh” doctrine of Genesis.157 Isaksson (1965:84f., 87) takes Paul in 1 Cor. 7:10 to be making a legal statement, issuing a directive to be obeyed by the Church: “he interprets Jesus’ saying about divorce as a binding halakah for the new people of God . . . The distinction between the sphere of the law and a sphere in which God’s will is expressed but mankind is not bound to try to obey it is a distinction foreign to the N.T.” This, indeed, is the rst unambiguous directive we encounter in Second Commonwealth times regarding the legal status of divorce as such. Clearly, both its social context and its theological justication158 are sectarian. It is that sectarian context which transforms a social into a legal institution. And we may suspect that it was in response to that (rather than vice versa) that rabbinic law also came to juridify its conception of the criteria for divorce. The appendix to Mishnah Gittin may, indeed, be viewed as a reaction to the New Testament, the attribution of the dispute to the Schools being intended, anachronistically, to show that even in Jesus’ day he was out of line. 7. Matthew’s porneia Exception Matthew’s porneia exception159 stands at the centre of many of the broad issues of the history of Christian thought on divorce, and its relationship to its Jewish background. 157

1 Cor. 6:16–17, discussed at 186, supra. Paul’s theological position is not the only possible justication for an absolute ban on divorce in the early church. Fitzmyer 1998:102 sees the conception of the church as a royal priesthood in 1 Pet. 2:5 as justifying extension to the whole community of the ban on divorce by the king in the Temple Scroll 57:17–19 and for the prince of the community in CD 4:20–21 (err.: 5:1–2). This argument is more solid here (with the explicit invocation of a “holy priesthood”) than it is for Qumran. Yet even here it is in the context of a privileging of spirit (“. . . be yourselves built into a spiritual house, to be a holy priesthood, to offer spiritual sacrices acceptable to God through Jesus Christ”). 159 Accepting the traditional interpretation. Some have questioned the meaning of  5 6$  0 in Matt. 5:32. Banks 1975:156, following Vawter 1954:163–65, reinterprets it as an absolute ban on divorce,  5 not meaning “with exception of ” but “apart from”. But this cannot be read into Matt. 19:9, '4   07. See also Wenham 1984:101 on the difculty of any attempt to apply the “preteritive view” (“Whoever divorces his wife, unchastity is irrelevant, and marries another . . .”) to Matt. 19:9. 158

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Against the more common view that the unqualied teachings against divorce (or at least remarriage after divorce) represent the earliest form of the Christian tradition, probably going back to Jesus himself, and that Matthew inserted the qualication in deference to either a Jewish audience he was seeking to convert or an already established practice in the Judaeo-Christian church,160 there is still a signicant body of opinion which maintains the priority of the Matthaean tradition161 and sees its incorporation of the porneia exception as explicable in contemporary Jewish terms. Indeed, Instone-Brewer seeks now to maintain that neither Luke nor Mark nor Paul sought to depart from this position. Enough may have been said already to cast doubt on that latter claim. But the precise nature of the interpretatio hebraica of the porneia exception deserves further consideration. It is commonly encountered in two forms, which in reality require separate assessment: 1. The Matthaean view broadly coincides with that of the Shammaites, as against that of the Hillelites. 2. The porneia exception is not to be regarded as a concession to principled opposition to divorce; in fact, Jewish law required the husband of an adulterous wife to divorce her. At most, the Matthaean position extends that requirement (if, indeed, it is still regarded as a requirement rather than a mere permission) to a broader class of sexual misbehaviour. These two propositions would coincide, if, for example,162 we could be condent that the Shammaite position (or, at least, its understanding by the Matthaean tradition) was that divorce was permitted (indeed, required) only in the case of the adulterous wife. But any such claim would require us to establish that this was the meaning attached by the Shammaites to the phrase ervat davar in Deut. 24:1,163 and this is far

160

See Isaksson 1965:87–91; Lövestam 1981:48. In addition to Instone-Brewer 2002, see esp. Isaksson 1965 and Bockmuehl 2000. The latter nds it difcult to imagine, within the Matthaean church “an easy shift . . . from one clear halakhic position (no divorce and remarriage; cf. also CD 4,19; 11QT 57.17–18) which had the authority of Jesus behind it to a different one (divorce in case of unchastity; thus Shammai), which at least prima facie did not” (2000:17). 162 A different, textual reason is given by Instone-Brewer, discussed infra, at 205. 163 Its precise original meaning remains obscure. Isaksson 1965:25f suggests that it was originally a euphemism for female pudenda (the woman’s offence being exposure, thus immodesty), and compares its use in Deut. 23:14 for faeces. 161

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from self-evident. In fact, we have a complex linguistic problem, which may be summarised thus: A. porneia164 is not the same165 as moicheia166 (the latter being the normal term for adultery), though it may well include it; B. porneia is used by the LXX as its standard rendition of zenut167 (an important term in this context also at Qumran);168 C. the range of zenut in both the Hebrew Bible169 and early rabbinics170 is itself broad and context-dependent (casting doubt on any restriction of porneia to incest).171 In the light of these complexities we must assess separately the two possible versions of the interpretatio hebraica of the porneia exception. We must also consider a possible interpretatio judaeo-christiana172 (if not an interpretatio romana),173 that the exception was generated not by any consideration of

164 See Fitzmyer 1998:88f. Bockmuehl 2000:21 takes it to mean “neither specically adultery nor illicit degrees of kinship, but (like twnz) any kind of unlawful sexual relationship.” 165 Cf. Winter 1956:74 n. 7; Lövestam 1981:56f., taking porneia to be more general than but including moicheia, cf. Fitzmyer 1998:88; Instone-Brewer 2002:156 n. 49; see also Lövestam 1981:57f. on a similar relationship between zanah and na’af in rabbinic sources. 166 Derrett 1970:371f., however, argues that Jesus means by moicheia the whole range of sexual experience, including the coveting of a neighbour’s wife in the Decalogue; on the range of the commandment, as understood in Second Commonwealth times, see Derrett 1970:380f. 167 Cf. Mueller 1979–81:254f. 168 For the view that zenut in CD probably conforms to porneia in the Matthaean conict story, see Vawter 1977:534, cf. Lövestam 1981:55f. On its meaning there, see n. 58, supra. 169 See Erlandsson 1980:99–104, noting the that the verb zanah “designates primarily a sexual relationship outside of a formal union”. 170 See the baraita in Yeb. 61b, where six different interpretations are given of zonah in Lev. 21:7. 171 The view, inter alia, of Fitzmyer 1998:99 (originally published 1976), who observes that the exception hardly renders the ban on divorce less absolute if it refers to an illicit union which should not have been entered into in the rst place (but if so, would a divorce really have been required?, cf. Instone-Brewer 2002:158). Against the incest interpretation, see Banks 1975:156, citing Acts 15:20f., 1 Cor. 5:1 and Heb. 12:16; cf. Lövestam 1981:54–58, notably on the Testament of Joseph, at 57; Bockmuehl 2000:21; Instone-Brewer 2002:156–58. 172 While not himself offering such an interpretation, Isaksson 1965:91 rejects the view that the exception represents “a Christian rabbi’s interpretation of Deut. 24” as “over-rabbinizing” Matthew, not least because Jesus in Matt. 19 “had clearly cancelled all that was enacted in Dt. 24.1–4.” 173 Bockmuehl 2000:18 notes a parallel with the lex Julia de adulteriis of 18 B.C.E.

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Jewish law, but rather to deal with a practical problem encountered by the early church in dealing with already-married converts. The issues are posed in sharp focus by the recent reconstruction of Instone-Brewer (2002): “The main area of disagreement about divorce among the rabbinic groups of the rst century concerned the new type of divorce invented174 by the Hillelites, called the “any matter” divorce” (2002:110). “The debate is recorded (in a highly abbreviated way) in the Mishnah”.175 It centred on the unusual and difcult phrase ervat davar in Deut. 24:1, not only because the construct (ervat) is apparently in the wrong place but also because davar is apparently superuous. The Hillelites “concluded that the two words referred to two different grounds for divorce—“indecency” and “a matter” . . . which meant “any matter” . . . The Shammaites took the two words to mean “a matter of indecency”,176 by which they understood the phrase to mean “adultery”,177 although in fact they also recognised other grounds, specically breach of the wife’s rights under Exod. 21:10.178

See, in particular, Dig. 4.4.37.1, according to which the statute dened adultery as including: “if he married a woman knowing that she had been condemned for adultery or did not divorce a wife taken in adultery or made a prot from his wife’s adultery or accepted money to conceal debauchery which he had discovered or provided a house where debauchery (stuprum) or adultery might take place” (Watson transl). On the statute, and a partial parallel with Athenian law, see Jackson 2005:360–62, esp. 361 n. 79. Goodenough 1929:85f. suggested that Philo may have had this in mind in his interpretation of Deut. 24 in DSL iii.31 as being directed against possible “pandering” (*$$ 0); see also Colson 1937:633. 174 This is not the place to pursue at any length the possible grounds for the claim that the view attributed to the Hillelites was new. Sufce to note that Deut. 24:3 contemplates the second divorce on the grounds simply that the husband “dislikes her” (RSV, translating hançw, cf. the usage in Deut. 21:15–17), and a virtually unrestricted power of the husband is supported by biblical narrative sources. At 2002:154 n. 44, Instone-Brewer qualies his claim: “The procedure of divorce for any cause was already widespread, as was seen by Philo (Spec. Leg. 3.30), Josephus (Ant. 4.253) and Sirach (25:26), but the Hillelite exegesis gave it a new validity that it lacked before.” 175 2002:110f., citing M. Gitt. 9:10, but noting also Sifre Deut. 269 and Y. Sota 16b (1.2), quoted at 2002:164: “The School of Shammai says: A man should not divorce his wife except if he found indecency in her”. Instone-Brewer does not cite the baraita of Gitt. 90a here, presumably because it does not itself restate the basic normative positions of the Schools on divorce (already stated in the immediately preceding Mishnah), but moves directly to the exegetical justication. 176 As if it were devar ervah: Instone-Brewer 2002:111. 177 Cf. 2002:159. 178 2002:112, noting that they debated with the Hillelites how long a man could stay absent: M. Ket. 5:6, quoted at 2002:106.

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However, the dispute, particularly as presented by Matthew, also includes the issue of whether divorce of an adulterous wife is mandatory or merely permitted.179 The structure is thus: (i) the Pharisees ask Jesus whether he accepts (the Hillelite) “any matter” divorce (v. 3); (ii) he replies by implication (from the Genesis creation texts) that he does not (vv. 4–6), since he maintains the indissolubility of marriage;180 (iii) the Pharisees then retort181 by asking about mandatory182 divorce in cases of adultery (v. 7); (iv) Jesus replies that this is not mandatory but only allowed (v. 8); it is a concession to “hardness of heart”, which Instone-Brewer interprets as referring to a case where the wife is a persistent adulteress and unwilling to give up her relationship and be reconciled to the husband;183 (v) Jesus nally answers the original question (v. 9): a man who gives an “any matter” divorce (rather than one based on ervah/porneia) and then himself remarries commits adultery against the wife. The structure of this reconstruction is logical, if we accept the premise that the Hillelites recognised two distinct grounds of divorce, “any matter” (davar) on the one hand, ervah on the other. On that understanding, the rst round of the debate, (i) and (ii), concerns davar; the second, (iii) and (iv), concerns ervah; and in (v) Jesus provides a composite summary of the combined effects of the two.

179 Instone-Brewer 2002:133–52. See also 2002:176f. for his overall reconstruction and explanation of what he takes to have been the original debate. For earlier views of Matthew’s approach to the issue, and its relationship of the Hillel-Shammai dispute, see Isaksson 1965:89f.; Lövestam 1981:48. 180 Instone-Brewer 2002:136–41: “Digression on Monogamy and Lifelong Marriage”. 181 Instone-Brewer 2002:134, 142, 171–75 regards Matthew here as closer to the original interaction. 182 Instone-Brewer 2002:143, noting that it was Isaksson 1965:102, 121 who rst noted the difference between command and permission in these sources. In the Markan version, it is the Pharisees who, when challenged about the law of Deuteronomy, reply that it is allowed in such circumstances. (Instone-Brewer assumes also here that the context of divorce for adultery is presupposed, even though there is no explicit hint of it.) 183 Instone-Brewer 2002:144–46, 180–82.

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This is an elegant reading, but it entails a number of signicant difculties. First, it is far from clear that the precise reconstruction of the biblical exegesis leading to the Hillelite position (not to mention its incorporation into the Mishnah)184 can be read back to the period of the Schools.185 That reconstruction depends upon a response from the Hillelites to the Shammaites (without any reply from the Shammaites) found in Sifre’s commentary on Deut. 24:1,186 but not in the Mishnaic statement of the Schools’ dispute. This turn in the argument is regarded by Neusner (1971:II.38f.) as deriving from Hillelite circles only, rather than being part of the “Shammai-Hillel-Houses tradition”. Second, the reconstruction of “any matter” as a “grounds for divorce”, while not inaccurate in a functional sense, misrepresents the real nature of the argument. Here, Instone-Brewer relies particularly on the following Hillelite argument187 in Sifre: If matter is said, why is indecency said? And if indecency is said, why is matter said? For if matter were said and indecency were not said, I might say, ‘She who goes forth on account of a matter (rbd ynpm) will be permitted to remarry, and she who goes forth on account of indecency (hwr[ ynpm) will not be permitted to remarry. (Neusner’s translation) 184

See end of section 5, supra. Bockmuehl 2000:17 doubts the easy association with the Shammaite view (e.g. Hultgren 1979:122), because the pre-70 dating of the latter is not rm. 186 From which the baraita in Gitt. 90a may well be adapted. Instone-Brewer 2002:163 and n. 61 is probably correct in regarding Sifre as the oldest version of the tradition. The baraita itself shows signs of amoraic development. Neusner 1971:II.38 has it terminate with the Hillelite argument, because the Shammaite response to that argument is introduced by an Aramaic editorial question: “What do they [the Shammaites] do with this?”, i.e. how do the Shammaites reply? In fact, it then continues with a response (in Hebrew) in which the Shammaites explain the presence of davar on the basis of a gezerah shavah with the use of that word in Deut. 19:15, to show that two witnesses are required also for divorce. Indeed, the debate continues further (in Aramaic, Hebrew being used only for the actual or alternative biblical texts): Bet Hillel say that if the Shammaites were correct, the biblical text ought to have been rbdb hwr[; Bet Shammai say that if the Hillelites were correct, the biblical text ought to have been rbd wa hwr[ wa. Bet Hillel has the last word: they explain the actual biblical text, rbd twr[, as designed to incorporate “both meanings” (ykh [mçmw ykh [mçmd), which the Soncino edition (437 n. 8) takes “to imply both that a ‘thing’ is sufcient warrant for divorcing, and that he cannot be compelled to divorce unless there is sufcient evidence of misconduct”. This might better be expressed as: he is permitted to divorce for a rbd, but divorce is mandatory in cases of hwr[. 187 Designed to rebut an assumed Shammaite objection that according to the Hillelite argument the biblical text ought to have mentioned rbd alone (a simpler and presumably earlier argument than that attributed to the Shammaites in the baraita, suggesting that the Hillelite argument required both terms in the alternative: cf. n. 186, supra). 185

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Sifre certainly argues that had the biblical text used only ervah we might have concluded that divorce is permitted only hwr[ ynpm; and had the biblical text used only davar we might have concluded that divorce is permitted only rbd ynpm. But this is an exegetical argument, and there is no evidence elsewhere that rbd ynpm entered common (or common halakhic) parlance,188 as Instone-Brewer appears to maintain,189 so as to generate a concept of an “any matter” divorce (which in InstoneBrewer’s argument really has to mean “any matter other than ervah”). Third, the very debate as to whether divorce after adultery is mandatory or merely permissive begs the question of what we mean by a “ground” for divorce. The Pharisees of Matthew speak of a command “to give a certicate of divorce”; rabbinic sources in this situation speak rather of the woman as “prohibited” to the husband.190 As against the view of the Pharisees that divorce in such circumstances191 was mandatory,192 Jesus may well have had history on his side in maintain-

188 There are no other occurrences in the Bar-Ilan database. In the baraita, the expression used is rbd wçm, and this version of the exegetical tradition is reected also in Yer. Gitt. 50, Yalkut Shimoni 247 and Pesikta Zutrata Lekah Tov 41a. 189 Instone-Brewer 2002:110, quoted in the text, supra, 205. 190 E.g., M. Sot. 5:1, T. Sot. 4.16, Sot. 25a, Y. Yeb. 9.2 (10a). For the rule, see also M. Yeb. 2:8, Sot. 18b, 27b, Ket. 9a. 191 Behaviour less than adultery, which was regarded as sexually provocative, also provoked recommendations for divorce. Bockmuehl 2000:18 cites T. Sot. 5:9 as indicating that it was a mitsvah to divorce a wife who bathes with men, and interprets this as mandatory (a “commandment”). But mitsvah does not necessarily carry that modality. See also the version of this tradition in Gitt. 90a–b, where it is said to be a mitsvah min hatorah to divorce where a woman acts immodestly in that she goes out with her hair unfastened or spins in the street with her armpits uncovered or bathes in the same place as men. Instone-Brewer 2002:98 cites M. Ket. 7:6 and T. Ket. 7:6, where much the same examples are given as grounds for divorce. But the Mishnah does not imply (nor does Instone-Brewer claim) that divorce is mandatory in these cases. 192 Instone-Brewer 2002:94–99 argues that the mishnaic teachings which imply that adultery necessitated divorce probably started after the sotah rite ended (since if she was guilty it was assumed that she would die: 96), though “opinion may have been moving in this direction during the rst century” (95). He takes M. Sot. 5.1 to be the only text to this effect in rst century sources (on the basis of the citation of Zekhariah b. Hakatsab). But can we be sure that “prohibited” in this context really means required to be divorced, as opposed to prohibited to have relations? It is the ritual aspect (impurity, etc.) rather than the legal institution of marriage that is primary in the one esh argument. This is supported by the Mishnah’s application of the prohibition even to those exceptional marriages where divorce was already banned by the Hebrew Bible, as where the marriage followed a rape (Deut. 28:29) or where the husband made a false accusation of premarital unchastity (Deut. 21:13–19): see M. Ket. 3:5, cited by Instone-Brewer 2002:94, which makes no mention of an obligation to divorce the wife. On an apparently stronger line taken in Targ. Pseudo-Jonathan to Deut. 22.26, see n. 198, infra.

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ing that it was only (albeit often highly) recommended.193 There is a veritable collection of “precedents” in the matter—Abram and Sarai (in the light of her entry into Pharaoh’s harem);194 Jacob and Bilhah;195 David and his concubines;196 Joseph and Mary;197—though it is far from clear what strength of modality (or form of parting: separation or divorce) is reected in these narratives (or what is the signicance of the fact that the woman in some of these cases may well have been a less than willing partner).198 The difference between mandatory and permissive divorces, however, went beyond the strength of the modality: for the Rabbis (as in the Bible)199 what really counted was the purity of

193 LXX Prov. 18.22a, cited by Bockmuehl 2000:18: “he who holds on to an adulteress is foolish and godless”. See also Instone-Brewer 2002:97: “Although divorce may not have been compulsory, it was generally assumed that a husband would want to divorce an unfaithful wife.” He also cites (at 96) a baraita (Sot. 25a, etc.) according to which R. Zeira holds that a husband may retract a warning to a suspected adulteress, as evidence that though it may have been expected before 70 that a husband would divorce his adulterous wife, this was not compulsory. But this “warning” may well be a necessary requirement for laying the foundation for a sotah procedure, rather than a prerequisite for a divorce for adultery. 194 On the version of the story (in fact conating elements of Gen. 12 and 20), in 1QapGen20.25, where Abraham prays: “May he not be able to dele my wife away from me tonight”, see Bockmuehl 2000:19f., citing also Philo, Abr. 98, where Sarah’s purity is preserved. 195 See Bockmuehl 2000:19f. on Jub. 33.7–8, where Bilhah is rendered unclean for Jacob, and Test. Reuben 3.15, where Jacob “had no further relations with her”. 196 2 Sam. 20:3, described as “living widows” when abandoned by David in the light of Absalom’s relations with them: 2 Sam. 16:21–22. 197 According to Matt. 1:19, Joseph “wanted to divorce her” on nding that she was pregnant. Bockmuehl 2000:18 notes that patristic sources often interpret this as indicating (only) separation (despite * 2), citing Crouzel 1971:47–51. Isaksson 1965:138f. discusses this narrative in terms of an extension to premarital unchastity. But this would depend on when the premarital unchastity took place: a betrothed woman is clearly treated as the same as a wife in the Hebrew Bible, for the purposes of the law of adultery. See also Instone-Brewer 2002:97. 198 It is clear from Deut. 22:23–27 that rape is a defence to a capital charge of adultery against a woman. It is less clear what effect this had in pre-rabbinic sources on the woman’s marriage. Rabbinic sources take a strict line: Bockmuehl 2000:18f. notes that Targ. Pseudo-Jonathan to Deut. 22.26 prescribes divorce even where a betrothed girl was raped, and at 2000:20f maintains that 1QapGen20.25, taken along with Philo and Test. Reuben, “provides a clear pre-rabbinic attestation for the halakhic idea that any sexual interference with an existing marriage bond produces a state of impurity, which precludes a resumption of that marriage”; therefore, he argues, “it was essential for Matthew’s partly Jewish Christian community to afrm that their otherwise strict divorce halakhah did not at this point contravene the Torah. Otherwise, Jesus’ teaching could have incurred the charge of condoning sexual misdemeanour under the universal umbrella of an indissoluble marriage bond . . .” 199 Supra, 195, on Deut. 24. Isaksson 1965:22f. cites 2 Sam. 20:3 and Gen. 49:4 for the

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the sexual relationship (a religious matter, of issur veheter, as this area of law came to be classied); the termination of the marital bond in itself was secondary.200 None of this is to deny that Second Commonwealth sources (including Philo201 and Josephus)202 widely attest Jewish adherence to “liberal” divorce practices (in common with much of the Greco-Roman environment, and consistent with a historically weakly institutionalised approach to both marriage and divorce), or that this could prove a matter of ideological conict. Rather, it is to doubt that the Matthaean controversy pericope includes a coded version of the exegetical debate (later) attributed to the Schools. Moreover, the overall effect of Instone-Brewer’s argument is to reduce even further the distance between the Schools, and thus to minimise the signicance of challenging Jesus to say, in effect, whether he sides with the Hillelites or the Shammaites. For Instone-Brewer accepts that the Shammaites also recognised other grounds, specically breach of the wife’s rights under Exod. 21:10;203 conversely, he takes the Hillelites to have adopted stricter procedural rules than the Shammaites precisely in order to mitigate possible abuses of their “any matter” grounds.204

“Israelite view that that a man must not have sexual relations with his wife after she has had it with another man”, and at 1965:25 applies this to Deut. 24:1–4. Bockmuehl 2000:18 cites Jer. 3:1, Ezek. 16;38, 40: 16:38 and Lev. 21:7 as passages suggesting the impossibility of restoring a disrupted union. 200 Indeed, Neusner 1971:III:96 has noted the relatively small interest attributed to the “Schools” in family law matters. Signicantly, he observes at III.295 that “ritual considerations in respect to sexual relations . . . do gure”. 201 Instone-Brewer 2002:115 (cf. 134 n. 3) argues that the Hillelite position is assumed as normative by Philo, DSL iii.30 and Josephus, Vita 426f., Ant. iv.253 (see n. 202, infra). 202 Josephus, Ant. IV. 253: “He that desires to be divorced from his wife for any cause whatsoever (80), (and many such causes happen among men,) let him in writing give assurance that he will never use her as his wife any more . . .” Cf. his own divorce: Vita 426 (where he tells us that he was “not pleased with her behaviour”). On Josephus’ own marital history, see further Jackson 2005:367. 203 Instone-Brewer 2002:112: the Shammaites debated with the Hillelites how long a man could stay absent: M. Ket. 5:6, quoted at 2002:106. 204 See Instone-Brewer 2002:112f. on M. Gitt. 5:4. However, he also argues, at 2002:131f., from the sequence of material in M. Gitt. 8:4–9, that the Schools themselves may well have taken a more relaxed approach to some technical issues (in the light of “their mutual acceptance of their differences” and that the editors wished to emphasise that the technical requirements applied in these cases. He also sees the reforms of Shimon b. Sheta˜ (2002:81–84; see also Jackson 2003) as “probably” introduced mainly as a result of the Hillelite “any matter” divorce, even though he himself dates them to “the previous century” (2002:113).

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In the light of this, and without a rm foundation in the exegetical issue, it still appears preferable to revert to the more traditional view of the background to the debates in the Gospels, namely that they reect a more basic ideological debate on the status of marriage itself in the imminent eschatological age.205 In one respect, however, Instone-Brewer’s invocation of the HilleliteShammaite exegetical debate casts unexpected light on the background to the Synoptic sources. For the terminology of the argument in Sifre, as seen from the quotation discussed above (pp. 207f.), places more emphasis on the capacity for remarriage than the issue of divorce itself. 8. Divorce by the Wife Does Mark 10:12 provide evidence of a Jewish practice of divorce by a wife,206 or should we rely on Paul’s terminological distinction in 1 Cor. 7:10–11207 in support of the view that only a husband can divorce; the most a wife can do is “separate” (the latter being used in a non-legal sense)? Of course, there is no question of divorce rights being extended by Mark to a wife; nevertheless, some broader issues of the approaches of different Jewish groups to gender equality do arise,208 not least in the extended denition of adultery to include relations of a married man with an unmarried woman. A substantial corpus of material has accumulated to indicate that some Jewish groups in Second Commonwealth times were familiar with divorce effected by act of the wife. The earliest is the military colony at Elephantine, from whose marriage contracts it is clear that the wife has a right to stand up in the assembly and pronounce a divorce formula against her husband. In Brooklyn 7:24–25, for example, we

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On the practical issue addressed by Matthew’s porneia exception, see infra, 223. See Jackson 2004a:159f. That divorce by the wife was unproblematic in the Hellenistic-Roman context is undisputed: see e.g. Instone-Brewer 2002:72–74; Jackson 2005. Issues then arise as to the characterisation of Jewish sources which adopt such practices, particularly at a time before these areas are fully religiously institutionalised. See further Jackson 2004. 207 Infra, 217. 208 Yaron 1962:174 denies that the attitude of the New Testament (and some Jewish sects) is motivated by any egalitarian tendencies. By contrast, Gruber 2001:193 argues that “the subject of women at Qumran constitutes an egalitarian system”. Interestingly, Instone-Brewer does not seek to apply the Qumran “principle of equal application” (see 177, supra) here. 206

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read: “And if Yehoyishma divorces her husband Ananiah and says to him [in an/the assembly], ‘I divorce [thee], I will not be to thee a wife’ . . . the divorce money is on her head, his (or her?) mohar is lost.” Both the terminology of the Elephantine contracts, and the fact that divorce is performed by an oral declaration, is evocative of Hosea,209 and thus linked to a form of practice in Palestine distinct from and perhaps anterior to that in Deuteronomy. Yet even this does not entail the view that marriage and divorce were generally regarded as religious institutions: religious law appears not yet to have been conceived to include such basic marital matters.210 In the rst century c.e., Philo provides a version of Deut. 24:1 in which it is the wife who takes the initiative for the rst divorce: “. . . if a woman after parting from her husband for any cause whatever marries another . . .”, using the verb *

, . Daube (1956:370) notes that the same verb is used by Philo also of the wife who is falsely accused by her husband of not having come to him as a virgin, and who may “leave” him whether he so wishes or not (DSL i.105, iii.30, 82). Josephus records that his own rst wife “left me”.211 More signicant, however, are the accounts Josephus gives of the divorces of ve Herodian princesses.212 The most radical case, apparently, is that of Salome, who “sent her husband a bill of divorce (#'  . . . 9 $''  ) and dissolved her marriage with him (* '#  5 $)' ), though this was not according to the Jewish laws213 (:  ’;! '); for with us it is lawful for a husband to do so; but a wife, if she departs (! ) from her husband, cannot of herself be married to another, unless her former

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See n. 110, supra. See further Yaron 1961:53–64; Yaron 1962:174; Instone-Brewer 2002:75–80; Jackson 2004:207f. 211 *

,$: Vita, 415; see Daube on Josephus’ divorce terminology elsewhere, mainly with reference to the husband. 212 For a full discussion, see Rabello 1981:92–94; Jackson 2005. 213 Daube 1956:371f. argues that, notwithstanding Salome’s action, what she did, in legal terms, was simply to separate. He notes that when she explained her action to Herod, she used the expression * , “to part from the husband”. Yaron 1962:174 also endorses Josephus’ “traditional” Jewish analysis of the situation: “With regard to Salome he could hardly have done so if divorce by a wife had at all gained currency in Jewish circles . . .”. But it may be precisely because such a practice had “gained currency” that Josephus seeks to stress that it was outside what he regarded as normative Jewish law. 210

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husband put her away (